Voting by mail is a crucial reform, but the details of how you implement it are very important.
Get used to seeing the four walls of your own home: Extraordinary measures to control the coronavirus pandemic, potentially including social distancing, may be necessary for months. It’s far from clear that society will be back to normal by the November general election.
And even if the disease is under control, many voters may be cautious about stepping out to a polling place where many people will gather.
When I reached out to a wide array of voting rights advocates, election law scholars, and former election officials, I heard the same three-word solution over and over again: “vote by mail.” Mail-in ballots are a major reason turnout did not crater in the Florida and Arizona primary elections held earlier this month. And they are the most straightforward way to ensure that voters can still cast a ballot even if they are stuck at home.
In the ideal regime, which already exists in Colorado, Oregon, Washington, Utah, and Hawaii, voters would automatically receive a ballot in the mail in the weeks before the election. These voters should also be given the option to vote in person, in case they do not receive the ballot or lose it, but no one should have to request a mail-in ballot in order to receive one.
Such a system can be implemented state by state. It also could be implemented in all 50 states by Congress, which has the power to determine the “times, places and manner of holding elections” for members of the House.
But voting by mail also isn’t a panacea. There are some voters, such as Native Americans without easy access to the postal service and people experiencing homelessness, who may struggle to vote if a mail-in ballot is their only option. This is why it is important to offer in-person voting as a backup option.
Federal law also requires states to provide ballots in the native languages of many voters with limited English skills. To comply with this law, states will need to keep records of which voters need such ballots, and what language each ballot should use.
Many states have not built the infrastructure necessary to handle the crush of millions of paper ballots arriving in a short time. Building that infrastructure quickly might be challenging, and it will require funding — although states that build efficient infrastructure could save a great deal of money in the long run.
And a system dominated by mailed ballots also may require Americans — and, most notably, members of the press — to be patient with a vote-counting process that could take days or even weeks. It is unlikely we will know the winner of the 2020 presidential race on election night if voting by mail becomes the norm.
These problems can be surmounted, but they will require lawmakers to be thoughtful about how they support state officials preparing for Election Day. They will also require lawmakers and those state officials to identify voters who may face obstacles between themselves and the franchise, and to take care to accommodate those voters’ needs.
How most Americans will cast a ballot in a vote-by-mail regime
Let’s start with Americans who will find it fairly easy to cast a ballot from home: fluent English speakers who do not have a disability that requires them to seek assistance filling out a ballot or mailing it, and who have easy access to a mailbox or to a location where they can drop off their ballot.
Even these voters will face some logistical challenges, however, in order to vote by mail. For starters, it’s hard to vote if you do not have a ballot. For this reason, “all voters should have ballots mailed to them and be provided with a list of options as to how to cast their completed ballots,” according to a letter to policymakers signed by a long list of civil rights organizations led by the Leadership Conference on Civil and Human Rights.
Such an automated process requires the state to keep accurate and up-to-date voter registration records. It is inevitable that some voters’ registration information will need to be updated from time to time, because states do not monitor voters to automatically determine when someone changes addresses. For this reason, it needs to be easy for voters to update their records if they move.
As Justin Levitt, a professor at Loyola Law School who oversaw much of the Justice Department’s voting rights work during the Obama administration, told me, election officials “gotta know where the people are, and it’s got to be accurate.”
Both the Leadership Conference letter and a similar list of reforms offered by the Brennan Center for Justice’s Wendy Weiser and Max Feldman, highlight the need for a robust online voter registration system to make it easy for new voters to register and for already-registered voters to update their information. “States that do not have” online voter registration, Weiser and Feldman write, “should work to set up such a system immediately.”
To make that possible, Congress may need to provide subsidies to states to help them set up online registration processes as quickly as feasible.
Online registration may also help mitigate the fact that traditional voter registration drives — where activists go door to door or approach voters at public places — may not be possible in an age of social distancing. Registration drives “are going to be on social media and through direct messaging if folks can’t go door to door,” according to Rick Hasen, an election law professor at the University of California Irvine. And online voter registration “is going to be a huge help.”
States should also eliminate policies — and, if necessary, Congress should enact federal legislation preempting state laws — that prevent voters from registering due to trivial errors or inconsistencies on voter registration applications.
In the lead-up to the 2018 election, for example, then-Georgia Secretary of State Brian Kemp, who was simultaneously the Republican candidate for governor, placed about 53,000 voter registration applications on hold because of an “exact match” law that required the information on those applications to precisely match information on file with the state’s Department of Driver Services and the Social Security Administration. (Kemp won his governor’s race by a very narrow margin.)
As Levitt explained to me, inconsistencies are inevitable and can occur for arbitrary reasons. A government database might omit the hyphen from someone with a hyphenated last name, for example. A data entry clerk may encounter someone with an unusually spelled name (such as “Simth”) and alter that name (to “Smith”) out of a mistaken belief that they are correcting an error. A Korean American voter who places his surname before his given name (“Kim Jae”) may have his name transposed (to “Jae Kim”) in a government database to correspond with the Western norm. None of these are valid reasons to deny someone the right to vote.
Finally, voters who want to vote by mail must be allowed to do so at no cost. This is a constitutional necessity, as the Constitution forbids poll taxes of any kind. As the Supreme Court held in Harper v. Virginia Board of Elections, the government violates the Constitution “whenever it makes the affluence of the voter or payment of any fee an electoral standard.“ That means that voters who cast their ballot by mail must receive free postage and may not face any other cost.
Vote by mail for all who want it
In the lead-up to the 2018 election, North Dakota Republicans enacted a law that required voters to present their current residential address in order to vote. The law was widely viewed as a voter suppression measure targeting Native Americans, who were expected to support then-Sen. Heidi Heitkamp, a Democrat, in the coming election.
Many voters who live on Native American reservations do not have a residential address of the kind that the US Postal Service uses to identify homes, and rely on PO boxes to receive their mail.
These voters are one of several reasons none of the voting experts that I spoke with recommended that voting by mail should be the only option on Election Day.
Amber McReynolds, the CEO of Vote at Home, is, as the name of her organization suggests, a vocal advocate of making it as easy as possible for voters to cast a ballot by mail. Yet she emphasized to me that she “never said we want 100 percent vote by mail.” Instead, McReynolds pointed me to the system she played a major role in implementing when she was director of elections for Denver, Colorado.
Colorado established “vote centers” to supplement mailed ballots. A voter may cast a ballot at any vote center within a given jurisdiction — the center provides them with the appropriate ballot depending on where they live. If one vote center is too crowded, voters have the option of casting their ballot elsewhere.
Such a system eliminates the single-point-of-failure problem where a voter is locked into a specific precinct even if that precinct is unable to process voters quickly. It also allows states to use same-day registration, which will enable voters who do not receive a ballot in the mail for whatever reason to still exercise their right to vote. These centers also may allow voters to cast their ballot early, thus reducing the size of crowds on Election Day.
The alternative of keeping a traditional polling precinct structure in place — where in-person voters must go to a single designated polling place near their home — will be “very hard” in a pandemic, McReynolds told me. Poll workers may not show up because they are sick, and at least some voting machines will break down over the course of a day. And when a precinct is short on workers or machines, that can lead to the “five-hour lines” that voters endured in the past.
There are other considerations, too. Under the Voting Rights Act, people with disabilities may be assisted by a person of their choice (other than their employer or an agent of their union) when filling out a ballot. In areas where a significant number of voters primarily speak a language other than English, the Voting Rights Act also requires states and localities to provide ballots and other voting information in that language. Voting officials will need to comply with these requirements when they set up both in-person and vote-by-mail systems.
Among other things, this means that state voting officials will need to keep records of which voters need to be mailed a ballot in a language other than English — and which language should be used on that ballot.
State officials should also be vigilant about preventing polling places from becoming vectors for coronavirus infection. That means following the Centers for Disease Control and Prevention’s guidance regarding polling places. It also means special attention needs to be paid to populations that are especially vulnerable to the pandemic. As Weiser and Feldman write, “polling places are routinely sited in buildings that primarily serve communities identified as high risk for serious Covid-19 illness, like senior care facilities.” On the one hand, leaving a polling place in such a location could endanger the health of nearby residents. On the other hand, those residents have as much of a right to vote as anyone else, so plans would need to be implemented to ensure they can still cast a ballot.
“I’d want to be sure there is some option for dropping off ballots that allows groups — e.g., churches and civic organizations — to collect people’s ballots and return them,” said Pam Karlan, a professor at Stanford Law School who also oversaw much of the Justice Department’s voting rights work during the Obama administration. That could allow members of the community to ensure that many especially vulnerable voters are able to cast a ballot.
So what will this all cost?
Sens. Amy Klobuchar (D-MN) and Ron Wyden (D-OR) introduced legislation, the Natural Disaster and Emergency Ballot Act, which would require states to expand access to early and mail-in voting if a quarter of the states declare a state of emergency. Though their bill does not go quite as far as many of the experts that I spoke with suggested it should — it does not require states to automatically mail ballots to all eligible voters — it does make it easier for voters to request and to use absentee ballots.
Their bill also would provide states a total of $500 million to help cover the costs of shifting to a system where voting is primarily done by mail.
Most states have the kind of infrastructure that makes sense if you are expecting most voters to show up to a polling place and vote in person. They’ve invested in voting machines and polling booths, and their election officials are trained for this kind of election. The coronavirus pandemic will likely require them to make different investments — in printing costs for the absentee ballots, postage and envelopes for voters, and potentially in sorting machines and other technology that helps the state count absentee ballots.
McReynolds emphasized to me, moreover, that many of these costs are likely to be inevitable. The overwhelming majority of states already offer “no excuse” absentee voting — meaning that a voter can request an absentee ballot without having to justify that request. So these states are already going to see “a huge increase” in the number of absentee ballot requests if voters are still socially distancing on Election Day. (The Klobuchar-Wyden bill would require all states to offer no excuse absentee voting.)
States could also wind up saving money in the long run if they centralize their process for sorting and counting absentee ballots. Many states currently delegate this task to local officials, which prevents them from taking advantage of economies of scale. “If you only have 2,000 voters in your county,” McReynolds told me, “there’s no reason to spend $20,000 on a scanner.” But a centralized operation can afford to invest in technology that makes the voting counting process vastly more efficient.
She told me that she watched poll workers in Detroit individually sort just a few mail-in ballots by hand every hour, when a high-quality machine could have sorted as many as 50,000 ballots per hour. Local voting offices in Michigan probably couldn’t afford such a machine — and even if they could, it would be a waste of money to buy one machine for every county in Michigan. But the state as a whole could make that investment if the counting process were centralized.
Will Republicans get on board?
Of course, all of this talk about election legislation is academic if lawmakers won’t pass any bills. Without Republican buy-in, election reforms just aren’t happening in many crucial states. Republicans control the Senate and the White House, and state legislatures in the pivotal states of Arizona, Wisconsin, Michigan, and Pennsylvania.
As a general rule, Americans who are financially stable and who have lived consistently in the same home are especially likely to vote. Americans closer to the margins of society are less likely to cast a ballot. This explains why older voters are much more likely to turn out than younger voters, white voters tend to turn out at higher rates than voters of color (although African American turnout is sometimes the exception to this trend), and wealthier voters are more likely to turn out than lower-income voters.
The cohort most likely to turn out — older, white, high-income voters — is largely Republican, while many of the groups that are least likely to turn out will prefer Democrats if they do cast a ballot. So Republicans historically haven’t had much incentive to make voting easier. Indeed, Republican lawmakers have spent much of the past decade passing legislation that makes it harder to vote.
Under ordinary circumstances, in other words, Republicans are unlikely to support a reform like vote by mail, as there is evidence that it improves turnout among low-propensity voters.
But Coronavirus could scramble the GOP’s ordinary incentives. In 2016, President Trump won voters over the age of 65 by 7 points, according to a CNN exit poll, even though Democratic candidate Hillary Clinton won the overall popular vote. Similarly, in 2018, Democratic House candidates trounced their Republican opponents, winning the nationwide popular vote by the largest midterm margin since Watergate, but exit polls still showed Republicans winning voters over 65 by a 2-point margin.
These older voters are especially at risk from coronavirus, and thus may be especially cautious about leaving their home on Election Day. And if these older Americans do not vote, Republican politicians throughout the country are likely to find themselves unemployed.
Will that be enough incentive for Republicans to enact legislation ensuring that all eligible voters can cast a ballot during a pandemic? That remains to be seen. But the GOP now has a profound incentive to take voter protection seriously in 2020.
Author: Ian Millhiser