(This op-ed was first published in LAWFARE on March 19, 2020.)
It is quickly becoming apparent that the COVID-19 pandemic will fundamentally change the 2020 election. The government’s response to the crisis will affect voters’ perceptions of candidates, to be sure—but the pandemic will also affect whether and how citizens vote in the primaries and the general election. As state and local officials try to navigate an unprecedented situation, their response to the pandemic has been uneven and uncertain.
This past week has provided ample evidence that states are in need of reliable plans to carry out elections without interruption in the face of the unfolding medical crisis. Ohio Governor Mike DeWine caused alarm when he decided to postpone the presidential primary the day before it was scheduled to occur. DeWine’s action may have been justified on public health grounds, but it illustrated the confusion that can arise when states are caught between opening polling places and endangering the health of citizens. Meanwhile, the governor of Arizona and the director of elections for Maricopa County fought over whether the county could send out mail-in ballots even to voters who have not requested them. Their battle illustrates that without a definitive statewide plan, state and local election officials can be locked in litigation when they should be cooperating to face serious challenges to the continuity of elections.
Despite the challenge presented by COVID-19, the 2020 elections must go forward. The elections to be held on Nov. 3 are not optional. They cannot be postponed, even if dangers to public health remain as great as they are likely to get over the next few weeks. The nation must act now to ensure that there will be no doubt, regardless of the spread of infection, that the elections will be conducted on schedule and that they will be free and fair.
Doing so requires an effort in election resilience that is unprecedented in American history. However, there are some clear paths toward achieving the desired result. We offer 10 steps in that direction.
1. The United States must plan for a significant shift to mail balloting for the 2020 election.
Protecting personal and public health during the coronavirus outbreak requires social distancing—encouraging people to remain physically apart from one another as much as possible to prevent the spread of COVID-19, the respiratory disease caused by the virus. With this in mind, increased mail balloting is clearly the best path forward. While there are good reasons to ensure that in-person voting continues, the type of social distancing needed to make in-person voting viable requires a significant reduction in voting on Election Day and perhaps even during the early voting period.
It may be that the greatest risk to in-person voting is to poll workers, not voters. The typical poll worker will encounter about 700 voters on Election Day, while the typical voter may encounter only about 20 other voters and election workers when they go to the polls. Keep in mind that about one million people staff the polls on Election Day, many of whom are older and more vulnerable to the virus. The country must find a way to disperse the infection risk from in-person voting.
The federal government must appropriate the necessary funds immediately to facilitate the transition to vote by mail and expanded early voting. This initiative requires a commitment comparable to that of the Help America Vote Act of 2002, which authorized $3 billion to states to modernize their voting systems following the 2000 election. Bills to accomplish this are being introduced in Congress now. Although reformers have proposed a host of potentially salutary mandates for the states to follow in the expenditure of these funds, Congress is more likely to appropriate money to secure the 2020 election if fewer strings are attached that trigger partisan or regional concerns. State and local election officials know they are under the gun to adapt the election system to provide for free elections while maintaining public health. The biggest boost Congress can give right now is helping to pay for the adjustments that these officials know they must make quickly.
2. The nation must commit to supporting the logistical effort necessary to conduct mail elections with integrity and efficiency.
Vote-by-mail requires more than stuffing envelopes, mailing ballots, receiving them back and counting them. Building a quality mail-ballot operation that serves voters and the larger society well requires a significant investment of money, infrastructure and management attention.
How much of an investment depends on what type of mail-balloting system a state wants to adopt. At one end of the spectrum is the vote-at-home model exemplified by Colorado, Oregon and Washington, where all voters are mailed a ballot, neighborhood polling places are eliminated, and voters either return their ballots by mail or drop them off at vote centers or dropboxes. At the other end is a strategy that incrementally expands a state’s existing mail-balloting policy. For example, in those states that require a medical excuse for voters to receive an absentee ballot, the need to avoid contracting COVID-19 could be proclaimed by the relevant state authorities to constitute a legitimate excuse to avoid the polling place. States could also simply abandon their rules requiring an excuse to cast an absentee ballot and simply clarify that voters may cast an absentee ballot for any reason at all.
Adoption of the first strategy—mailing ballots to all voters and functionally eliminating in-person voting for most voters—would be a significant undertaking for any state that has previously discouraged voting by mail. One estimate suggests that it would take a couple of billion dollars to implement widespread mail balloting in time for the 2020 election if mail ballots were deployed to this degree across the United States. This is on top of the changes to laws and management practices that would have to follow.
A robust mail-ballot program requires a different administrative apparatus than in-person voting. The more a state pushes to increase the number of mail ballots, the greater the change in how elections are administered. One of the major hang-ups in expanding vote-by-mail has been related to keeping track of all the paper—paper that moves outside the watchful eyes of election officials. But the challenge goes beyond that. States that have committed to the vote-by-mail model have had to invest significant time and money into infrastructure that helps accomplish the following:
- Ensure that the addresses of voters are valid and up to date
- Track the location of every ballot once it leaves the county election office
- Communicate with voters about the location of their ballots both while they are in the custody of the U.S. Postal Service and once they have been received back at the election office
- Validate ballots through a rigorous and fair program of signature matching
- Notify voters in a timely fashion if their ballots have been contested a failure to match signatures
- Give voters an opportunity to “cure” any contested ballot in time for it to count
States that currently make minimal use of mail ballots would need to implement new systems of list maintenance, ballot tracking, liaising with the Postal Service, signature verification and public outreach on short notice to adopt a full vote-at-home system. Yet, for any state, a range of options could be undertaken to enhance access to mail balloting while not overly taxing the state’s ability to manage the needed institutional change. The rest of our remarks are aimed at helping to provide a road map to that end.
3. Any efforts to expand voting by mail in time for the November election must appreciate the partisan polarization surrounding changes in election rules.
All Americans should hope that legal and administrative changes to guarantee voter access while protecting public health could be achieved on a bipartisan basis. Anyone who has worked in the area of election law and administration in the past two decades, however, knows that such changes often provoke raw partisan animosities. The two parties’ politicians and adherents have developed different views about the proper way to vote.
To the greatest extent possible, though, the United States must avoid a scenario in which one party protests the enactment of a major election administration change and then questions the legitimacy of whoever wins under it.
At its inception, vote-by-mail was championed by Republican and Democratic leaders alike. Washington’s former Republican secretary of state, Sam Reed, was for years the nation’s most prominent advocate for the reform. Washington’s current Republican secretary of state, Kim Wyman, has continued that tradition.
In states that have not adopted the vote-at-home model, Democrats are barely more likely to vote by mail. Using data from the Cooperative Congressional Election Survey (CCES), we estimate that in 2016, 22 percent of Democrats and 19 percent of Republicans in non-vote-at-home states voted by mail—barely a difference worth noting
Rather, the voters who currently use the mail to vote are distinguished not so much by partisanship as by age. Using the same CCES data, we estimate that 27 percent of voters older than 65 voted by mail, compared to 18 percent of younger voters. Older voters, who are more likely to vote Republican but more at risk from the virus, may be particularly reluctant to vote in an Election Day polling place.
The expansion of vote-by-mail options offers benefits to supporters of both parties.
Every voter loses if a state is not fully prepared to conduct an election where the voters are safe and their votes can be legally and easily cast and counted. Neither Republican nor Democratic voters should be forced to risk their lives to exercise the franchise. We are heartened by the fact that the Republican secretary of state in Georgia arranged for the delay of the Peach State’s primary with the support of the state Democratic Party. Such efforts at bipartisan cooperation will be necessary if the changes that are needed to meet this crisis are to be enacted.
Even before the onset of the pandemic, the 2020 campaign and election presented unprecedented challenges that could have led to questions about the legitimacy of the process and the validity of the results. Threats of foreign and domestic disinformation and claims of fraud and disenfranchisement were already percolating even as the primaries got underway. Added to that toxic mixture is now a deadly pandemic, forcing widespread changes in American society and government.
Administration of the 2020 election would have been difficult enough without COVID-19. Last-minute, unprecedented changes to the way the U.S. runs that election will require a level of bipartisan cooperation that has been sorely lacking for some time.
To this end, we encourage leaders at the highest levels of government to listen to those working on the ground in administering the elections about how to proceed practically to make expanded mail balloting a reality. In our experience, local officials prioritize finding ways to get ballots to voters in challenging emergency situations. They are the ones who are most likely to have actionable ideas about expanding mail-balloting options in a nonpartisan manner that emphasizes effectiveness and fairness.
The rules for the 2020 election must be specified far enough in advance to ensure that any questions regarding the procedures are resolved before votes are cast. Partisans will have all summer to fight in court about the proper interpretation of applicable procedures, but the basic rules and plan for the election must be laid out in the next two months.
4. States should approach this situation as an emergency, not as an opportunity to make long-term changes to election policy.
Expanding the use of mail balloting in 2020 does not mean that states should view this action as permanent, any more than citizens should regard the current need to keep physical distance as a permanent feature of American life. It is an exigent action. Current state practices that address convenience voting—both mail balloting and in-person early voting—vary across the map, because attitudes about what constitutes good election practices have evolved within the confines of individual states. As a consequence, voters and representatives tend to share a strong bias toward existing practices in how their own state structures voting. The growth in convenience voting methods has evolved organically in each state, typically proceeding in small steps. Some states have embraced expanded vote-by-mail options. Others have emphasized voting in person during early voting. Only about a dozen states remain committed to the traditional Election Day-only voting model.
Recent experience with responses to natural disasters in the midst of voting—such as Hurricanes Sandy and Michael in 2012 and 2018, respectively—demonstrates that the public will accept, indeed welcome, officials making exceptions to established voting rules in order to accommodate dislocations. Our impression is that the public can distinguish between emergency actions undertaken to address an unusual situation and attempts to use an emergency to sneak in major long-term policy changes through the back door. With that in mind, the expansion of voting by mail we advocate should be approached as a response to a particular crisis. There will be time in the future for states to consider whether this expansion is appropriate when the emergency is lifted.
5. States need to reconsider the division of labor between state and local authorities in the conduct of elections.
Although much is made of the decentralized nature of election administration in the U.S., the fact is that some states are highly centralized in administering elections while others give local jurisdictions tremendous authority. Some of the logistical challenges facing the election process are such that localities simply cannot handle the burden in many states. In 2016, for example, 13 states had five percent or fewer of their voters cast ballots by mail. What will it take for these states to ramp up so that most, or even all, voters cast mail ballots? The effort will be substantial. Given the way that elections are administered in the U.S., this burden will fall largely on the shoulders of local governments and their election officials.
The dependence on local governments to administer elections stretches back to America’s colonial past. It reflects the American belief that democracy emanates from the grassroots. Yet in times like these, it is appropriate for higher levels of government to step in and provide a hand to the governments that will bear the responsibility of carrying out emergency voting plans. Not only should the federal government help fund the necessary election infrastructure to respond to this emergency, but states, too, must step in to provide other resources and logistical assistance. State governments possess the administrative know-how and coordinating abilities to help local governments pull this off. Depending on state law and practice, states can, for instance, establish centralized or regionalized printing and mailing facilities, or create consolidated ballot-processing facilities. All of this can be done without giving the impression that this is part of a centralized takeover of the election system.
6. Election officials need to be working with the Postal Service immediately to ensure a smooth transition to expanded mail balloting.
Commentators often remark and sometimes lament that, given the role of federalism in American election administration, there is no national or federal election authority. However, in an election done predominantly by mail, the Postal Service becomes that national election authority. States must work with their regional postal offices immediately to consider the logistics involved in mailing and returning an unprecedented number of ballots.
Each county is often in charge of managing hundreds of different styles of ballots, given that voters often live in many different types of legislative and local districts. Some jurisdictions manage ballots in more than a dozen languages. The weight of those ballots is different and requires different envelopes and postage. All of this is manageable, if accommodated in the normal course of operations—but standing up a massive, unprecedented vote-by-mail operation in a few months requires constant communication with the Postal Service concerning common obstacles. The Postal Service has a website and an “election mail kit” dedicated specifically to election-related mail issues.
In addition, commentators need to understand that “vote by mail” describes an array of practices. The caricatured model is that the voters receive ballots at their homes, vote the ballots, and then place them back in their own mailboxes for letter carriers to return to the county election office. In practice, a large share of—in some states, most—mail ballots are delivered by voters, themselves, to the polls on Election Day or to designated county drop-off facilities. Other states allow individuals to collect or to “harvest” ballots from many different voters and to deliver them to the election authorities. Voters can receive and return mail ballots in many different ways. The rules for the chain of custody of ballots, which can be a source of litigation and claims of fraud, must be clearly specified in advance.
7. States need to communicate clearly to voters how mail ballots will be distributed, and develop plans such that ballots actually get to the voters intended.
There are many ways to implement a plan that expands access to mail ballots among voters. For some states, this may even be accomplished within existing parameters of state laws.
If a state expects voters to apply for mail ballots, then the infrastructure needs to be built to make the application process seamless. Some states now accept mail-ballot applications through secure electronic websites that streamline requests. Other states make the paper application available for download, which can be cumbersome and introduce extra steps that can thwart citizens’ desire to vote by mail. States that merely give voters the option to download an absentee ballot application to be mailed in should develop a purely electronic system, if the state has the technical capacity to do so.
If a state plans to mail a ballot, or ballot application, to every voter, then the voter rolls need to be accurate and up to date. The accuracy of the addresses on a state’s voter roll will often vary according to a state’s particular administrative needs for a given election. If a state discourages the use of mail or absentee ballots, the addresses need only be good enough to draw precinct and legislative district lines. If a state relies on the Postal Service to deliver a ballot to every voter, then every address in the voter roll needs to be one the Postal Service recognizes. Whether a state decides to send a ballot to every registered voter depends, in part, on assessing how good the addresses are in the voter file.
Getting ballots to voters is not self-executing. States need to create plans that actually get ballots to as many qualified voters as possible.
A quick perusal of state websites reveals how online tools and interfaces may need to be changed in fundamental ways to roll out mail balloting for the November election (let alone for the primaries). Even those of us with doctoral degrees and expertise in election administration are finding it challenging to navigate the relevant websites to register and request a mail ballot. These websites will need to be changed and updated as soon as the state reforms its procedures for the election in the fall. Rapid technical changes in the arena of election administration often fail when they are first rolled out. Getting these changes right will be even more difficult as the relevant agencies are short-staffed or working from home during the outbreak.
8. In-person voting won’t go away.
The purpose of expanding vote-by-mail options is to reduce the density of people in polling places, to decrease the risk of infection and to deal with a likely shortage of willing poll workers. Even when voters are diverted away from polling places by using mail ballots, millions of voters will continue voting in person. As attention is being paid to expanding mail options, election officials must also focus on reengineering the polling place experience in order to reduce the remaining risk.
For instance, research shows that the longest lines on Election Day are those encountered when the polls first open, and that the opening-hour lines often take an hour or two to dissipate even when everything is running smoothly. Local jurisdictions need to develop techniques to spread out arrivals to polling places so that they are more even throughout the day. We marveled at the story of how during the March 17 primary, Cook County, Illinois, encouraged its poll workers to use painters’ tape to mark off six-foot increments to help keep voters from getting too close to each other. That’s the type of ingenuity needed at a time like this.
We know from public opinion research that voters are more confident that their votes are counted as cast when they vote in person. It’s no surprise that as the three major vote-by-mail states have offered more opportunities for voters to return their marked ballots in person, confidence in the process has grown. For states that are reluctant to expand vote-by-mail options, it is paramount to engineer Election Day and early voting polling places so that lines are short and contact with others is minimized.
In addition, particular classes of voters are reluctant or unable to vote by mail. Voters with disabilities may often need assistance that is more likely available in polling places. Minority voters have disproportionately voted in person. And of course, voters without stable home addresses—a group that may increase greatly due to dislocation caused by the pandemic—may be hard to reach through the mail.
9. Election officials need to communicate with the public to address the anxiety that is likely to attend the counting of votes.
With each election, the vote-counting process has become more challenging, as more and more votes are counted—or at least reported—days after Election Day. The vote counting for this coming November is likely to see even more delays than has become the norm. Both election officials and the media need to be prepared for this. Election officials should communicate frequently with the public and be transparent as counting progresses. Some local jurisdictions livestream the counting of their absentee ballots, while others install large glass walls outside their centralized tabulators to allow the public to watch. More measures like this are required.
For the media, it will be important to focus on the process and how it has changed. The message that it is “more important to get it right, than to get it fast” will become more important than ever. Most importantly, voters need to understand now that the winner of the 2020 election may not be known on election night. Although we can expect various websites to speculate or even “call” the winner of the presidential election before the mail votes have been counted, responsible media institutions need to resist that temptation. Assuming the share of voters casting ballots through the mail doubles or triples in the battleground states this fall, the networks accustomed to announcing a winner on election night should prepare their viewers well beforehand that they may need to wait until later in the week for the final results.
10. Adjustments to voting rules must respect behavioral regularities that voters have demonstrated over the years, and are unlikely to change, even in the midst of a public health crisis.
Every effort to reform the electoral system, whether in “normal” times or in times of crisis, contains an element of romanticizing the political engagement of Americans and overestimating their inherent interest in politics. Those of us in the elections community—which includes thousands of officials, academics, candidates and advocates—live and breath elections. Even in the face of one of the greatest public health crises ever to confront this country, we are obsessed with how the COVID-19 pandemic will affect the remaining primaries and coming general election. We assume that rank-and-file voters share this obsession. We are likely wrong.
The reality is that most voters do not spend a great deal of time thinking about the mechanics of how they vote. Most voters vote in the same manner, year after year. Over time, the process becomes comfortable, predictable and ingrained in the minds of voters as the natural way that voting occurs.
Although it is absolutely necessary to provide a safer way for voters to cast their ballots, it is also necessary to understand that most voters will not pay much attention to how the voting process may be changed until late October. Voters who have a strong affinity toward voting in person may resist voting by mail.
The strong status quo bias among voters has implications for how responsible officials plan for the remaining primaries and the November election. First, public education about any changes in the voting process needs to be ubiquitous and amplified by all interested election actors. The campaigns will play a major role in communicating with voters about the availability of alternative modes of voting. So will media outlets of all types.
Second, voters may insist on voting in person, even though mail options are expanded. Because there is no analogy to the current situation, it is impossible to predict how voters will respond to even the best communication campaigns encouraging them to vote by mail. As difficult as it may be, even states that go all-in on mail voting in 2020 will need to provide safe and convenient in-person polling places to those who wish to avail themselves of that option.
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The action plan we have outlined implies the need for a significant infusion of creativity and material support for an election infrastructure that was already running at 110 percent of capacity in preparing to battle the challenges of misinformation, disinformation and cyber warfare. The same degree of new effort will not be demanded of every state, however.
Of course, all states must ensure the integrity of their elections and the safety of their citizens. Yet, the Electoral College, for better or worse, focuses special attention for the presidential election on the administrative practices of a half dozen states that will determine the outcome of the 2020 presidential election. Two of these battleground states, Michigan and Pennsylvania, were already rolling out expanded mail-ballot programs in 2020. Their election officials are at least in the mindset of perfecting a new mail-balloting system for the coming election. Florida, another one of these battleground states, already casts a third of its ballots by mail and another third during early voting. Getting the proportion of mail ballots up to half would not represent an insurmountable obstacle to the counties that would have to process them. New Hampshire and Wisconsin, though, cast 10 percent and 5 percent of their ballots, respectively, by mail in 2016. Those states would require considerable additional resources and effort to shift to mail balloting. The same is true for another half dozen states with elections that might decide control of the U.S. Senate.
The United States can overcome the challenges involved in transforming our electoral system seven months before ballots are cast. If the country acts now, federal, state and local governments can ensure that all voters cast ballots in November without risk to individual or public health.
American democracy has endured a civil war, two world wars and the flu pandemic of 1918. The U.S. held elections during all of those life-changing and democracy-endangering events. The COVID-19 pandemic represents a unique challenge. It requires an extraordinary commitment at all levels of government, and from the media, political parties, campaigns and voters. The country can meet this challenge if Americans begin to prepare immediately.
Nathaniel Persily is the James B. McClatchy Professor of Law at Stanford Law School. He is the director of the Stanford Cyber Policy Center and the former research director of the Presidential Commission on Election Administration. Charles Stewart III is the Kenan Sahin Distinguished Professor of Political Science at MIT. He is co-director of the Caltech/MIT Voting Technology Project and director of the MIT Election Data and Science Lab.