The mailbox vs. the ballot box

On Monday, New York officials canceled the state’s Democratic presidential primary, slated for June 23. It’s an unprecedented reaction in a primary season disrupted by the COVID-19 pandemic. Officials in other states took less extreme approaches. In Wisconsin, officials plagued with partisan squabbling forged ahead with an in-person election. In Wyoming, they switched to all-mail voting entirely.

Wyoming Democratic party officials pointed to their smooth election as a blueprint for the state, and perhaps the nation, come November. Their counterparts in Washington, D.C., agree. But transitioning nationwide to a strategy of all-mail voting is not going to be easy. On top of administrative and security challenges, disagreements over absentee voting run deep along partisan lines.

Supporting absentee voting is not a new position for Democrats. The first bill they introduced after winning control of the House in 2018, H.R.1, called for mandatory mailed ballots to all registered voters. It also called for the legalization of ballot harvesting—the practice of allowing volunteers to collect and submit absentee or mail-in ballots en masse.

In light of the pandemic, the Democratic National Committee has renewed its push for vote-by-mail programs. Congressional Democrats also lobbied for expanding absentee voting in the $2 trillion CARES Act. Democrats reportedly asked for $2 billion to make election law changes. They also introduced legislation that would have ballots mailed to every registered voter for November.

Republicans rebutted top-down election reform in the CARES Act. However, Democrats are expected to continue to push for such measures in the next legislative response to the coronavirus.

Currently, only five states conduct all-mail elections: Colorado, Hawaii, Oregon, Utah, and Washington.

Currently, only five states conduct all-mail elections: Colorado, Hawaii, Oregon, Utah, and Washington. Twenty-nine other states allow “no-excuse” absentee voting. Sixteen states require voters to provide a reason for why they need a mailed ballot in order to obtain one. Some of those states now allow coronavirus concerns to count as a valid reason.

Washington’s Secretary of State Kim Wyman, a Republican, told me it took her state years to transition to a full vote-by-mail system. To other secretaries of state, she recommends not attempting to convert entirely to absentee voting unless they already have high levels of it: around 50-60 percent. She says a hybrid solution is better for states with low numbers of absentee voting.

Two of the biggest challenges facing states are cost and time. Election officials must print ballots and return envelopes weeks in advance, and must include instructions for voters. Printing, stuffing, and mailing eat up hours. The left-leaning Brennan Center estimated it might cost up to $1.4 billion to implement absentee voting nationwide, mostly due to postage costs.

Meanwhile, high-speed vote tabulation machines needed to process absentee ballots cost up to $1 million.

Temporary elections workers use a machine to scan signatures and sort mail-in ballots in Renton, Wash. JASON REDMOND/AFP via Getty Images)

Of course, the coronavirus introduced a handful of hurdles for states intending to hold in-person elections. Three of the election officials I interviewed mentioned that they faced staffing shortages, as many of their volunteers tended to be in a high-risk category for coronavirus due to age. In Wisconsin, staffing shortages resulted in Gov. Tony Evers calling in 1,000-plus National Guard troops to man polls.

But many states, unequipped for large-scale absentee voting, will attempt in-person elections anyway. Kentucky, where 98 percent of votes are cast in person, is one of them. “It’s hard to turn on a dime and redo an election system in a very short period of time,” said Kentucky Secretary of State Michael Adams.

One of the biggest challenges facing the expansion of vote by mail is the suspicion it meets across the aisle. President Donald Trump said voting by mail is “ripe for fraud.” Republicans coming down in favor of security over accessibility (as the oversimplification goes) prefer voters to fill out ballots under the supervision of election officials. They’re quick to point out chronic problems facing administrators including outdated registration rolls, vote-buying, and ballot-harvesting that allow bad actors to commit voter fraud.

Using data from the Federal Election Assistance Commission, the Public Interest Legal Foundation found that in 2016, nearly 6 million mail-in ballots went “unaccounted for,” or missing. Ballots mailed to the wrong address is a consistent issue, though there is not evidence that these unaccounted for ballots were used maliciously.

“I agree with the president’s point that voting by mail is uniquely susceptible to fraud, but I believe you can catch all of that and have a stable and normal election as long as some integrity is built into it,” Adams said. He said steps, such as as verifying signatures and requiring personal information in applications for ballots discourage bad actors.

Adams said he finds laws allowing for ballot harvesting of particular concern: “We’re not going to allow ballot harvesting when an activist, a political volunteer, can bring in boxes and boxes of cast ballots while I’m Secretary of State. It’s a great way to get more vote fraud.”

Such fraudulent schemes do occur, though skeptics note that current research does not seem to indicate the problem is systemic.

The Commission on Federal Election Reform, chaired by former President Jimmy Carter and former Secretary of State James Baker III, in its 2005 report concluded that absentee ballots are “the largest source of potential voter fraud.” The commission said that citizens who vote away from the ballot box are “more susceptible to pressure, overt and subtle, or to intimidation.”

The most recent example of voter fraud came in the 2018 midterm elections. L. McCrae Dowless Jr., an operative for Republican Mark Harris’ campaign, requested more than 1,200 absentee ballots on voters’ behalf and ballot harvested them from their homes when they were mailed. Dowless currently faces criminal charges for absentee-ballot fraud. Harris won by just 905 votes over Democrat Dan McCready. A new election was ordered, but Harris did not run.

Not all Republicans view absentee balloting with a wary eye. Wyman is one of them: “I’ve done elections for a long time. Do I believe there’s rampant voter fraud? No, I do not. Do I believe it’s 100 percent perfect? No, I do not.” She mentioned cases of well-meaning relatives who had posted a ballot in a recently deceased loved one’s name.

She doesn’t believe such cases represent an attempt to “change the outcome of the election on some massive scale.”

Former National Republican Congressional Committee Chairman Tom Davis told Politico that Republicans assume “mail-in ballots help Democrats” but said he believes that is because of their reluctance towards utilizing the method. It remains to be seen which party will favor it more if both push for it equally. Even Trump admitted on Twitter that absentee ballots are “a great way to vote for the many senior citizens ... who can’t get to the polls on Election Day.”

An elections assistant sorts mail-in ballots at a warehouse ahead of the 7th Congressional District special election in Baltimore. AP Photo/Julio Cortez

Wyman said the patchwork of election laws presents officials with challenges, that such federalism presents “the strength of American elections.” Each vote is as secure as the state’s election officials are meticulous, the laws solid, and the protocols straightforward.

Donald Palmer, a Trump appointee to the U.S. Election Assistance Commission, told me, “We don’t need a one-size-fits-all way of voting.” Palmer also expressed his confidence that, rain or shine, elections will weather the current pandemic in ways that are suited to each state: “Election officials deal with contingencies all the time: hurricanes, earthquakes, now a pandemic. … [They] know how to handle these emergencies and plan for those contingencies.”

A Twenty-first century Congress

While Washington pushes for absentee voting for Americans, it’s stewing in a partisan battle over its own voting system. With health concerns, as well as the optics of a sidelined Congress (especially with President Donald Trump’s daily coronavirus briefings) some lawmakers have called for changing rules to allow for remote work.

Lawmakers who want a way to work remotely argue its necessary to prevent another instance of what happened when the U.S. House of Representatives took up the CARES Act.

On March 27, the House was poised to pass the $2 trillion economic relief package by unanimous consent. It sailed through the Senate via unanimous consent two days before. But the night before the vote, Rep. Thomas Massie, R-Ky., hinted an objection on Twitter to the idea of passing such a massive bill without a majority of lawmakers present. Without a quorum, or a majority of members, to overrule any objection, a single lawmaker could kill the bill. Leadership sounded the alarm, and some 200-plus lawmakers hotfooted it back to Washington.

Nancy Pelosi arrives at the U.S. Capitol to vote on the stimulus bill. Win McNamee/Getty Images

So while lawmakers urged constituents to follow their state’s guidelines to stay at home and avoid nonessential travel, they boarded planes or road-tripped back to the Capitol. The package passed with no fireworks.

But the issues raised by Massie’s stunt remain. Rank-and-file lawmakers on both sides of the aisle want their daily work of hearings, markups, and caucus meetings to continue, even from home. Bolder voices have called for remote voting for committees and for the floors of both chambers.

For weeks, Senate Majority Leader Mitch McConnell, R-Ky., and House Speaker Nancy Pelosi, D-Calif., squashed any movement on remote voting. They’ve chalked their resistance up to security and constitutional concerns.

But groups on both the right and the left say these concerns may be overstated.

Cully Stimson, manager of the Heritage Foundation’s National Security Law Program, said it is absolutely within Congress’ prerogative to work remotely. “They can make up any rule they want that’s germaine,” he said.

As far as security risks, he pointed out lawmakers in leadership or on committees with access to classified information already have secure communication lines. Lawmakers also have access to secure, encrypted emails. “This will not be a heavy lift to get,” Stimson said.

He acknowledged that much of leadership’s reluctance to move to a remote system could boil down to tradition, but noted that even the change-resistant U.S. Supreme Court recently announced it would hear cases via teleconference. Many members of Congress are “on the older side,” he pointed, and could be especially vulnerable to COVID-19: “You don’t want to put vulnerable people together.”

Marci Harris, founder of POPVOX, a nonpartisan online platform that tracks legislation, said potential risks should be kept in perspective. She acknowledged security concerns with the popular videoconferencing application Zoom but said administrators password protecting meetings on the front end discourages easy hacking. From there, hearings or votes via Zoom or another videoconferencing application could be broadcast to Youtube or C-Span to preserve accessibility.

“We’re talking about public hearings. We’re not talking about anything anybody is trying to keep private,” Harris said.

She also emphasized changing the rules to allow for remote work would not have to be permanent to be effective. “It wouldn’t mean that the old rules are gone, it would just mean that right now ... something has got to be different.”

The left-leaning organization Demand Progress also called for Congress to vote on a rules change the next time they are in town.

“They’ve taken themselves out of the game when they’re needed the most,” Daniel Schuman, Policy Director for Demand Progress, told me. “It means that all those members of Congress have become a Greek chorus with little voice and no power because they can’t be there.”

In some respects, members of Congress accomplished a good deal before (and since) they left town March 26. They responded to the coronavirus pandemic by passing four pieces of legislation. All garnered broad, bipartisan support.

But as congressional leadership has taken the lead on negotiating these massive relief bills with the Trump administration’s team, many rank-and-file lawmakers have little ways to influence the process. American Enterprise Institute scholars Yuval Levin and Adam White noted in a National Review op-ed that when the CARES Act came out, some Republicans raised concerns last minute about a provision allowing people drawing unemployment benefits to receive more than they would from working a minimum wage job. But leaders gave them no real chance to amend the text.

The longer lawmakers stall on moving toward allowing more remote-work, the longer their list of items to tackle once they can meet again grows. Like Hercules’ labors, 12 annual spending bills must be conquered, with markups and voting that currently must be done in person. So too, Trump’s political appointees and judicial picks remain in limbo. The Senate announced plans to return to Capitol Hill on May 4. But the House on Tuesday canceled its return due to coronavirus fears.

Congressional leaders have taken some small steps toward a more 21st-century Congress. Pelosi announced that members can now submit floor documents, including bills and resolutions, electronically to a secure email. Lawmakers can also co-sponsor or make comments to legislation electronically. Pelosi recently softened to the idea of proxy voting. It’s a step short of fully remote voting, but would allow some lawmakers in person to vote on behalf of absent lawmakers. House Republican leaders remain opposed.