[EL] Reducing the Risk of an Election Meltdown

Fri Mar 20 12:16:43 PDT 2020

As you note, some states already permit processing absentee ballots ahead of election day. There is not good reason why every state should not do that. That would lessen but not eliminate the issue of late and delayed results. 

As for your second change, designed to more directly shorten the post-election day processing and count, I find that problematic. The difficulty has to do with human nature. California has vast experience with this issue. We have found some things that don’t seem to change no matter how the process has changed. Fewer than one percent of the absentee ballots that are cast arrive at elections offices within one week after they are sent to voters 30 days before the election. At the two-week mark, only about two percent will have been returned. In counties up and down the state, large counties as well as small, 84 percent or more of the absentee ballots arrive at the elections office in the last 12 days, including those that are turned in at polling places on election day. This has remained static for some 20 years. Even in places that have mailed absentee ballots to every registered voter, the statistic hasn’t changed. To move the postmark requirement back from election day would have the inevitable result of disenfranchising large numbers of voters no matter how great a public education effort was implemented. Perhaps a more effective solution to the issue you pose would be to hire and train more people to process the ballot after election day. Maybe move in some people from other county departments to help with the load. 

As for why the post-election count tend to shift the result, the reason is simple. More Republicans send in their ballot earlier and more Democrats send them in late. Where we once viewed absentee ballot as skewing conservative and Republican, that has changed. They now skew Democratic and more closely conform to the actual election day polling place results.

Thanks for the essay.

Larry Levine

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Pildes, Rick
Sent: Friday, 20 March 2020 11:39 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: [EL] Reducing the Risk of an Election Meltdown

I’ve now posted an essay on Lawfare about one particular risk that vote by mail poses to a stable election outcome and measures to reduce that risk:

https://www.lawfareblog.com/reducing-one-source-potential-election-meltdown

From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Marty Lederman
Sent: Friday, March 20, 2020 1:32 PM
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: Re: [EL] Klobuchar/Wyden bill; and Persily/Stewart post

Sorry, here's the link to the K-W bill <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.klobuchar.senate.gov_public_-5Fcache_files_9_1_91a07f05-2Db6b3-2D4c6e-2Da363-2D652ecbe16ac0_142B6E0F07685857CC10772388587756.natural-2Ddisaster-2Dand-2Demergency-2Dballot-2Dact-2Dof-2D2020.pdf&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=pwxTsi-5ouqOvJcM2imC9o3_U869xgLEuS1XuHjsFpM&s=oV1yfHPtwj407qcVSG7f7jEj04YjjbAq6e186nUqEkg&e=>  again.

On Fri, Mar 20, 2020 at 12:24 PM Marty Lederman <Martin.Lederman at law.georgetown.edu <mailto:Martin.Lederman at law.georgetown.edu> > wrote:

I hope no one minds if I "re-hijack" this thread in order to:

-- encourage reactions to the remainder of the K/W bill <https://urldefense.proofpoint.com/v2/url?u=http-3A__v&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=pwxTsi-5ouqOvJcM2imC9o3_U869xgLEuS1XuHjsFpM&s=DtgQxv_ViPGrtDWzX75VA5YuctC8s8thAmUXMcFU_VM&e=> , apart from the "harvesting" provision; 

-- to draw attention to Nate (and Charles Stewart's) terrific blogpost <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.lawfareblog.com_ten-2Drecommendations-2Densure-2Dhealthy-2Dand-2Dtrustworthy-2D2020-2Delection&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=pwxTsi-5ouqOvJcM2imC9o3_U869xgLEuS1XuHjsFpM&s=VrLcNiPpXyPmY8gjmAOpX31Nkdms125HAoz3MDZnlvo&e=> , mostly about what states must do now;

and

-- to ask Nate and Charles, if they're "watching," what they think Congress ought to do (apart from appropriating massive amounts of aid); in particular, whether they favor K/W and/or other efforts to require states to adopt more robust Voting-by-Mail.

On Wed, Mar 18, 2020 at 6:49 PM Marty Lederman <Martin.Lederman at law.georgetown.edu <mailto:Martin.Lederman at law.georgetown.edu> > wrote:

Here's the bill <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.klobuchar.senate.gov_public_-5Fcache_files_9_1_91a07f05-2Db6b3-2D4c6e-2Da363-2D652ecbe16ac0_142B6E0F07685857CC10772388587756.natural-2Ddisaster-2Dand-2Demergency-2Dballot-2Dact-2Dof-2D2020.pdf&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=pwxTsi-5ouqOvJcM2imC9o3_U869xgLEuS1XuHjsFpM&s=oV1yfHPtwj407qcVSG7f7jEj04YjjbAq6e186nUqEkg&e=> .  I'd deeply appreciate people's thoughts on its merits/possible problems.  Thanks

On Wed, Mar 18, 2020 at 7:47 AM Marty Lederman <Martin.Lederman at law.georgetown.edu <mailto:Martin.Lederman at law.georgetown.edu> > wrote:

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=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=pwxTsi-5ouqOvJcM2imC9o3_U869xgLEuS1XuHjsFpM&s=-qo-Wg0E4bgQQSLyMQC5coGJGHowuF4eOEjS_48wSjA&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

-- 

Marty Lederman

Georgetown University Law Center

600 New Jersey Avenue, NW

Washington, DC 20001

202-662-9937

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200320/43567ef1/attachment.html>