As the legal, logistical, and political chaos surrounding the planned April 7 primary (and general election for certain judicial offices) in Wisconsin shows, holding elections during a pandemic is a nightmare. And it can also become a partisan playground, as evidenced by the determination of Wisconsin’s Republican legislative leaders to plunge ahead with Election Day in-person voting with the sure knowledge that turnout will be very low (apparently a good thing in their eyes).
It’s possible that by November, COVID-19 will be a terrible recent memory but not something that affects the present willingness of people to, say, stand in line to vote. More likely, reluctance to vote in person will endure and affect turnout in what is likely to be the most consequential national election in many decades. This is precisely why congressional Democrats pushed to include in the recent coronavirus stimulus legislation a pot of money for conditional grants to state and local election officials, helping them prepare for a pandemic-haunted general election — so long as they agreed to make polling places safer and voting by mail a practical option for any voter wishing to cast ballots remotely. Republicans rejected the idea of mandating any particular preparations for November, but went along with granting a relatively small amount of unconditional money, $400 million.
With additional stimulus legislation very likely on the way in the next few months, Democrats may try again to do something to keep the general election from being a disaster defined by contested results. Even if they fail to set some national standards, the battle for liberalized election rules will rage in many states. So the question in Washington and many state capitals will be: Is there some version of expanded voting by mail Republicans can accept?
The answer will vary according to the Republicans involved and the degree to which Democrats have any leverage to influence them. Some very loud conservative guardians against “voter fraud,” particularly at the Heritage Foundation, are generally hostile to voting by mail, seeing it as prone to abuse engineered by scheming liberals inclined to stuff ballot boxes (even though voting by mail is popular in some Republican-leaning states and is universal in hyper-Republican Utah). Even more conservatives, including Senate Majority Leader Mitch McConnell, oppose “nationalizing” elections by telling states how to run them, even for federal offices like president or Congress. So national legislation with mandates will require significant congressional Democratic leverage and the willingness to use it.
At either the federal or state level, however, there are several concerns about the procedures surrounding voting by mail that you hear Republicans talk about (sometimes disingenuously) that might be addressed in some sort of legislative compromise:
1. A ban on ballot harvesting. Nearly everywhere with widespread voting by mail, there are accommodations made to help people with limited access — because of geographic location, physical disabilities, or the burden of buying stamps — cast ballots. They range from prepaid postage on mail ballot envelopes to drop boxes in areas underserved by the postal service to provisions for ballot pickup and delivery by someone other than the actual voter. In some states, mail ballot collection and delivery is limited to family or household members; in other states, collection by certain entities (e.g., employers, unions, or campaigns) is prohibited. But in certain places, notably California, it can be anyone the voter designates — and even California doesn’t allow collection by people compensated according to some quota. Republicans often refer to the broader schemes for ballot collection and delivery as “ballot harvesting” (referred to as “community ballot collection” by Democrats), implying that it fosters ballot tampering on a broad scale, even though harsh laws and penalties for filling out or altering mail ballots remain in place.
Though there’s no actual evidence that lurid suspicions involving “ballot harvesting” are true (the one documented case of fraud via this method, in a North Carolina congressional election invalidated as a result, involving a Republican campaign operative in a jurisdiction where collection of ballots by anyone other than a family member was illegal to begin with), it’s probably not a fight worth waging for proponents of voting by mail. They should trade the general opportunity to collect and deliver ballots for less controversial practices like drop boxes or prepaid envelopes.
2. A limitation on post–Election Day ballots being counted. Critics of voting by mail also often complain that slow counts of ballots postmarked but not received by Election Day enable reversal of results by partisan election officials. Again, there’s zero evidence that this happens. But in 2018, House Republican leaders, including Paul Ryan and Kevin McCarthy, suggested something sinister was going on when congressional contests led by Republicans in Election Day returns were subsequently won by Democrats as late mail ballots drifted in (particularly in California, where ballots postmarked on Election Day are counted if they are received within three days).
Complaints about slow counts cannot be entirely addressed in an election conducted primarily by mail, since for purposes of avoiding fraud, individual ballots must be checked for address and signature verification against voter registration records. But given the very high likelihood that waiting days if not weeks for resolution of a presidential election will rev up partisan tensions and perhaps endanger the peaceful resolution of the contest, it might be a good idea in this year’s emergency conditions to cut off voting by mail earlier.
3. Non-repressive “fraud” monitoring mechanisms. Yes, Republican accusations, past or present, that there is a threat of widespread “voter fraud” are mostly disingenuous, or at least based on nonexistent evidence. But it is true that voting by mail at least makes fraud marginally more possible, if not likely. So if Republicans feel they need some sort of heightened vigilance toward fraud, if it does not involve direct intimidation of legitimate voters, proponents of liberalized voting by mail should probably just go along with it, if only to begin exploding a myth that many Americans believe across party lines.
We may have a good test case in Georgia, where Republican secretary of state Brad Raffensperger, fighting intraparty opposition to his plan to send voting-by-mail ballot applications to all registered voters, is proposing a “task force of election officials, prosecutors and law enforcement who will investigate mismatched voter signatures, multiple voters at the same address and voters who use nonresidential addresses.” Georgia Democrats immediately and understandably opposed the initiative, but if this sort of effort to combat “voter fraud” greases acceptance of widespread voting by mail, it might be a worthwhile compromise.
4. Requiring applications for voting by mail. The toughest compromise to accept, and one that should only be considered in states with little or no experience of voting by mail and/or with Republicans holding an effective veto, is to do what Georgia is doing: insisting on the intermediate step of requiring that voters request a mail ballot, but sending out applications to do so to all registered voters. That would represent a significant liberalization of voting by mail in the 16 states that currently require a specific excuse (often established by a sworn affidavit) for voting by mail, and the 24 others that require a proactive application by voters.
Yes, the goal should be a universal opportunity to vote by mail, at least during the coronavirus emergency, and receiving a ballot without red tape that can be cast without burden or serious inconvenience is the only way to accomplish that goal. But if half a loaf is the only thing available, nationally or in particular states, then arguably the focus should be on making sure every voter gets an application to vote by mail — and that they won’t experience major hassles casting that ballot and making it count. What no one should want is a high-stakes election in which voters have wildly unequal opportunities to participate, and where the results command no respect. If Republicans as a party decide that is the kind of election we must have because they love “federalism” more than democracy — or simply because they fear higher turnout — then we may all have to pick up sides and fight like hell.
