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

Wed Mar 18 06:34:39 PDT 2020

States should be prepared to modify their election laws and invoke election emergency provisions as necessary to respond to threats such as the coronavirus.  There are at least nine potential reasons, however, for not automatically sending absentee ballots to all voters without first receiving a request to do so.  These reasons also counsel against moving to a 100% vote-by-mail system nationwide:

1.  A voter may not be present at their address of record.  When a voter submits an absentee ballot request form, they can specify the address to which the ballot will be mailed.  Requiring voters to submit requests ensures that millions of ballots aren't languishing unvoted in the wrong place and dramatically reduces the number of duplicate/replacement ballots that need to be mailed (which also reduces the possibility of double-voting, whether inadvertent or deliberate).   Particularly given the major social and economic dislocations to which the coronavirus has given rise, there may be an even greater need than usual to send ballots to different addresses.

2.  Requiring voters to submit absentee ballots requests acts as a check on inaccuracies in voter registration rolls.  Despite many states' efforts to update and ensure the accuracy of information on their voter registration rolls, we know they are often outdated or otherwise inaccurate.  People may have moved, remain registered in multiple states, or died; in other cases, the original registrations may have been inaccurate or fraudulent (often as a result of paid third-party registration efforts).  Relying on voter registration rolls as the basis for automatically distributing absentee ballots on a nationwide basis means that tens of millions of absentee ballots are likely to be sent to people who are no longer eligible to vote within the jurisdiction, to an old address, or to deceased or non-existent people.   And federal law prohibits states from undertaking systematic efforts to update their registration lists throughout substantial portions of federal election years; attempts to update lists are often politically and judicially attacked as purges.

3.  Automatically distributing absentee ballots to all voters will nudge them into casting such ballots, rather than voting in person.  An absentee ballot is less likely to be counted as a legally valid vote than a ballot cast in person, however, for several reasons:

-  Absentee ballots have a higher rejection rate than in-person voting.  According to the EAC's 2016 EAVS, the nationwide rejection rate for absentee ballots was about 3/4 of a percent, but individual states' rejection rates ranged as high as 5%.  This can be for a variety of reasons:  voters fail to sign the ballots, voters' signatures don't match records, voters don't correctly use the security envelope, voters incorrectly mark their ballots, or other technical problems occur.

-  Even when voters' ballots aren't rejected, voters may fail to cast legally valid votes for a variety of reasons: they may inadvertently undervote or overvote, have physical challenges that prevent them from marking their ballots darkly enough, make stray marks that tabulation machines register as votes, or damage the ballots (i.e., tears, stains, etc.) for example.  Such mistakes are far less likely on electronic voting machines, which warn voters about undervotes, do not accept overvotes, and do not pose a risk of stray marks.  Even when voters fill out paper ballots in person at polling places, most or all jurisdictions now immediately scan them on-site to detect and warn voters about such problems, giving them an opportunity to correct their ballots.  Election personnel at polling places are also available and usually legally permitted to help voters do so.

- Absentee ballots also create a risk of being lost in transit, or being misplaced or damaged after being received by election officials.

4.  The United States has an approximately 60% voter participation rate in presidential elections.  Undoubtedly, some people who don't participate would do so if barriers to voting were reduced.  Tens of millions of other eligible voters, however, simply do not wish to participate in the election.  Automatically distributing absentee ballots to all voters throughout the nation in a presidential election means that literally tens of millions of absentee ballots will be sent to people who don't want them.  This seems to dramatically increase the likelihood of fraud - anything ranging from vote-selling, to the harvesting of unvoted absentee ballots from people who don't care, to stealing absentee ballots from mailboxes of inactive voters (or potentially even trash!).  There are over 214 million registered voters in the United States.  Having over 214 million absentee ballots floating around outside election officials' control seems like an extremely unreliable way to run a presidential election.  When groups oppose voter ID requirements, one of their main arguments tends to be that, whenever rare occasions of election fraud have occurred, it has always been through absentee voting, rather than in-person voter impersonation.

5.  Absentee ballots are subject to post-election challenges and litigation to a much greater extent than votes cast in person.  When recounts occur, changes in results tend to arise from absentee and provisional ballots, not in-person votes.  Encouraging a mail-based presidential election greatly complicates post-election stages, potentially subjecting every such vote to individualized challenge and litigation.

6.  This concern applies primarily to primaries: if absentee ballots are distributed substantially in advance of an election, and well before early voting starts, people may be nudged into casting their votes early, which raises the likelihood they will vote for candidates who later drop out.

7.  This might be a less salient concern, but automatically sending ballots to every voter in the nation substantially undermines the secrecy of the ballot.  Unscrupulous employers, party bosses, family members, or even friends/neighbors are more easily able to pressure people to vote a particular way.

8.  Most controversially, some may argue that requiring a voter to make some minimal, convenient but affirmative indication of interest in an election before receiving an absentee ballot increases the level of democratic deliberation by reducing the likelihood of essentially random voting from people who complete a ballot without any knowledge of, or interest in, the candidates, only because they received it.

9.  This argument applies only to a 100% vote-by-mail system:  A robust election system must allow for voting in a diversity of ways.  Adopting a single universal method of voting subjects the entire process to tremendous systemic risk.  Vote-by-mail appears to be an effective way of circumventing many concerns about the coronavirus, but it may be poorly suited to addressing concerns raised by other types of emergencies:  a national postal strike, anthrax in the mails, destruction of key postal mail sorting facilities.  Increasing the diversity of voting channels enhances the electoral system's overall resiliency.

Absentee voting has evolved into a critical cornerstone of our electoral system, and it will form an essential part of our response to the coronavirus.  It should not become the only available channel for voting, however, and while it should be available to those who need it, we must be cautious about encouraging its use on a near-universal basis because, like any alternative, it involves tradeoffs to the voter.

Michael

Michael T. Morley
Assistant Professor of Law
Florida State University College of Law
(860) 778-3883

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of 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: 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<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

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