Stanford Law’s Nate Persily on Securing the 2020 Election

Stanford Law's Nate Persily on Securing the 2020 Election 1

As the number of COVID-19 cases—and deaths—climbs across the country, and the realization that shelter-in-place orders enacted in most states are not likely to be lifted soon, questions about the upcoming democratic and republican party nominating conventions and the November election itself have been raised. Here, election law expert Professor Nate Persily, who served as the Senior Research Director of the Presidential Commission on Election Administration, discusses how we can secure elections during this health crisis.

What is the most important thing we should be doing now to prepare for the November elections?

We need the federal government to distribute at least two billion dollars to the states and localities so they have the resources to adapt their elections to pandemic conditions.  We need those jurisdictions to use those funds to do as much as possible to shift voters to mail balloting and retrofit polling places so they are safe for voters and poll workers if the pandemic continues or reemerges in the fall.

Voting by mail seems like an obvious way to allow people to vote while maintaining physical distance from one another. What are the existing barriers to increasing the proportion of votes cast by mail?  Legal? Logistical? Financial?

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Nate Persily co-authored an op-ed for the New York Times with Robert Bauer (former Obama White House Counsel) and Ben Ginsberg (former attorney for the George W. Bush and Mitt Romney Campaigns) to argue for more money and urgent preparation for conducting the November election in the midst of the pandemic.

Different states have different laws and cultures when it comes to vote by mail.  States, like Oregon, Washington, Colorado, Utah and Hawaii have shifted to nearly all-mail balloting.  In other Western States, such as California and Arizona, more than two thirds of voters cast votes by mail in the last election, with many voters permanently registered to vote by mail.  In contrast, many of the Southern and Northeastern states continue to require voters to provide an excuse for an absentee ballot, so less than 5% of voters vote by mail in those states.

For the states with high rates of mail voting, the transition from polling place voting has taken several election cycles.  Voters rarely are forced – as is now being contemplated – to a whole new way of casting votes for an upcoming election.  Moving to mail balloting requires public education and organization to acculturate voters to voting from home instead of at a polling place.  It also requires an infrastructure that cannot be built overnight.

What are the likely political challenges to voting by mail?  Is it the case that one party would stand to benefit more than the other by expanded vote by mail access?

Unfortunately, the issue of mail balloting has (perhaps expectedly) become politicized and polarized in this election.  President Trump last week came out squarely against vote-by-mail saying that he believed “a lot of people cheat with mail-in voting.” This concern has now ricocheted around right wing media and political circles so a clear partisan split is emerging on mail voting.

This polarization was neither inevitable nor obvious. Although in recent elections slightly more Democrats than Republicans have cast votes by mail, older voters, who are more likely to lean Republican, are more likely to use vote-by-mail. One might also expect older voters to be especially encouraged to do so in this election, given that they are a higher risk group that may be reluctant to vote in polling places.  We also should not make too much of historic mail-balloting figures as predictors of what might happen in this unique election. The differences have been small and the tendency to vote by mail in recent elections should not suggest that a widespread conversion to vote-by-mail would somehow benefit Democrats.

What about the President’s argument? Does vote by mail increase opportunities for vote fraud?  Does it affect turnout?

Vote fraud in the U.S. is rare, and mail-balloting is no exception.  To be sure, fraud in mail balloting is more frequent (even if rare) than fraud in polling places, given the fact that the ballots are cast beyond the watchful eyes of poll workers.

The turnout effects of mail balloting are even more contested.  Perhaps in some elections, particularly those with low salience, mail balloting may make a difference, but the difference is small.  Most people who vote by mail, when given the option, would show up in a polling place if given the opportunity.

More importantly, we cannot and should not expect to run the 2020 election in all states, for all voters, by mail.  Large sections of the population are accustomed to voting in polling places and will not trust the mail to deliver their ballot.  Racial minorities, in particular, have tended to vote in polling places when given the option.  In addition, the process of applying for a mail ballot, voting it properly with a signature on the outside envelope for verification purposes, and then returning it on time is not a process that new, or infrequent voters navigate as easily as those who have voted by mail for some time.  (Millions of votes are “lost” by mail in each election at one of these stages in the process.) We need to maintain the option of voting in polling places for as many people as possible.

Read op-ed for the New York Times by Nate Persily, Robert Bauer, and Ben Ginsberg: We Must Vote in November. This Is How to Ensure That We Can

But how can we make polling places safer to vote?

That is, indeed, the million dollar – or I should say, billion dollar – question.   In the next few months, can we identify enough appropriate polling sites, willing and able poll workers, and systems for disinfected and socially distant voting, that people will feel comfortable showing up at the polls in November?  If we dedicate the appropriate resources immediately to do so, I believe the local election administrators can pull this off.

This may require creative solutions.  Several jurisdictions are experimenting with curbside voting, for example – in which voters vote from their car. Once the Wisconsin Supreme Court forced the state’s Governor to run the election as planned, he called on over 2400 members of the National Guard to help serve as poll workers, which is something many states may feel obligated to do in the fall given that poll workers tend to be older, and therefore more at risk from the virus.  Where possible, we also need to extend the period for early in-person voting and encourage people to vote in the middle of the day when lines are less likely – perhaps even to “take a number” to vote, instead of waiting in line.   Moreover, poll workers may need to follow the lead of those in Cook County during their primary – marking off with painters tape six feet increments on the ground to ensure that voters keep physical distance.  I also think poll workers may need to hand out “I Voted!” masks, instead of stickers this year.

Local election officials around the country have the knowhow to run this election, even under these extraordinary constraints.  We just need to get them the necessary resources to ensure that a difficult situation does not become catastrophic.

Given all that you have described and suggested, how confident are you that we will know the winner of the election on election night?

I am not confident – nor should we plan to know who the winner is on election night. This is a norm that we need to change – right quick. Given that the number of mail ballots, some of which may arrive after election night, may double for this election, “we” (meaning, especially, the responsible news organizations itching to call a winner as early as possible) should prepare to wait for results for several days after the election.

Indeed, the most valuable resource that is in short supply for this election is time.  Voters are going to need more time to vote.  Election officials will need more time to administer the election and count the votes.  And we all need more time before the winner is announced, in order to ensure all eligible votes were tabulated and any difficulties discovered on Election Day are remedied.

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Nate Persily is the James B. McClatchy Professor of Law at Stanford Law School. He has served as a court-appointed expert to draw legislative districting plans for Georgia, Maryland and New York and as special master for the redistricting of Connecticut’s congressional districts. Most recently, he served as the Senior Research Director for the Presidential Commission on Election Administration, a bipartisan commission created by the President to deal with the long lines at the polling place and other administrative problems witnessed in the 2012 election.