The pandemic-inspired moves toward the first mostly mail-in election in November may solve the public health issue, but the change will likely trigger problems that will reverberate long after Election Day.
With tens of millions of Americans expected to mail in their ballots for the Nov. 3 general election amid a tangle of state laws, the country may not know whether President Donald Trump or Joe Biden won for days, even weeks. And during those weeks, there will likely be charges of cheating, lawsuits and demands for recounts in a country that prides itself on open, fair and efficient elections.
With no-excuse voting by mail already legal in 34 states, elections experts say the number of mail-in ballots could dramatically increase from the nearly 25% of votes that were cast by mail in 2016, given the public’s ongoing fear of gathering in large groups before the coronavirus is vanquished.
That would be the biggest shift in voting since the 25th Amendment gave 18-year-olds the vote in 1971.
Trump is leading the Republican opposition to mail-in ballots with false claims that vote-by-mail is riddled with Democratic-led fraud and would ensure that “you’d never have a Republican elected in this country again.” Democrats are pressing states to make absentee voting easier, clashing with Republican lawmakers and in some cases suing to try to force the issue.
But experts say even if the laws remain largely unchanged, absentee voting rules are open enough that millions more Americans could vote by mail if they choose. The more serious problem may come when it’s time to count ballots.
If the U.S. turns largely to vote-by-mail this November, the counting process could trigger unpleasant memories of the 2000 presidential ballot-counting in Florida, when it took more than a month to settle on George W. Bush as the victor over Al Gore — ending with a controversial decision by a divided U.S. Supreme Court.
When people cast ballots at polling places, results are typically counted right at poll-closing time, and races are almost always settled on Election Night.
But counting mail-in ballots takes longer, especially in states with more generous deadlines and those where many people haven’t participated in absentee voting.
State laws also vary wildly. Some 31 states must verify the signature on the ballot envelope with one on file. Six states and the District of Columbia require a signature but don’t check it. Eight states require a witness sign the ballot as well. Three states require the ballot be notarized. Arkansas requires a copy of the voter’s ID, while Alabama requires a copy of the voter’s ID and a signature from two witnesses or a notary public.
And only 19 states require election workers notify voters of a ballot rejection and give them a chance to fix the problem.
Wealthy states have machines that verify signatures. Other states leave it to election workers to count by hand, with varying degrees of training, which can lead to false rejections. And in 15 states, including the crucial 2020 battlegrounds of Michigan, Wisconsin and Pennsylvania, election workers can’t even start counting ballots until Election Day.
Then there are states like North Carolina, where ballots can be accepted as long as they are postmarked on Election Day.
Any one of these steps in the process could lead to delays in the results and a huge legal and political mess, especially if they happen in a close election in a crucial swing state, said voting-rights lawyer Marc Elias.
“I think that’s a real problem in this country in good times, but it poses a critical problem in November,” said Elias, who worked on the eight-month fight over recounting the votes in Al Franken’s Minnesota Senate race in 2008.
Elias is now suing in Arizona, Florida, Georgia, Montana, North Carolina, Pennsylvania, South Carolina and Wisconsin to get those states to count any ballot that is postmarked by Election Day. He’s also suing over the signature-matching process in North Carolina and Pennsylvania, seeking to expand training and get consistent standards.
State elections administrators are also preparing to retrain poll workers to learn how to count ballots. They’re also looking for spaces big enough to allow counting while still keeping to social distancing rules.
Wendy Weiser, who heads a democracy program at New York University’s Brennan Center for Justice, said the problem is exacerbated in states that have had much lower rates of absentee voting, since their laws haven’t gotten much scrutiny over the years.
“A lot of these hurdles that might not make sense or might be unfair haven’t been questioned because that wasn’t the primary method people were using to vote,” she said.
Voting rights advocates say the delays could undermine confidence in the 2020 election, especially if the race is close. Those late-arriving ballots tend to be more Democratic-leaning, a trend that political scientists call “the blue shift.”
When he saw his lead narrow in Florida’s 2018 Senate race, Republican Rick Scott argued that “unethical liberals” were trying to “steal an election.” House Minority Leader Kevin McCarthy has made similar claims about late-counted ballots in his home state of California. And Trump has falsely claimed on repeated occasions that millions of Democrats voted illegally in the 2016 election.
The disputes would come amid a crisis of confidence in the U.S. election system. A C-SPAN/Ipsos poll in October — months before the pandemic — found that only 53% of registered voters said that the 2020 elections would be open and fair, with many expressing concerns about foreign interference, the accuracy of ballot counting and the lack of voter ID requirements in some areas.
Typically, about 1% of mail-in ballots are rejected for not arriving on time, missing a signature, or mismatching signatures, according to statistics compiled by the U.S. Election Assistance Commission. In 2016, when just under a quarter of voters mailed in ballots, that added up to more than 318,000 ballots that were thrown out.
Pat Pieper, a 59-year-old retiree living in Tenasket, Washington, had her mail-in ballot rejected in a local election in November because the clerk said her signature was neater than the one on her driver’s license. She only learned about the rejection by proactively checking a state-run website and rushed to fix it, but her ballot still went uncounted.
“Signature verification is not a good way to verify your identity,” she said. “It gives them absolute power to reject your ballot.”
And while Trump has claimed that vote-by-mail favors Democrats, there is strong evidence that the counting process disadvantages their base.
Mail-in ballots by young people, blacks and Hispanics are rejected at far higher rates than for older, white voters. If Trump won a key state on Election Day, Democrats would likely sue, claiming that those voters were unfairly rejected and agitating for a recount, turning a cursive signature into the 21st century version of a hanging chad.
Daniel Smith, a University of Florida professor who studies mail-in ballots, said voters age 18-21 in Florida are five times as likely to have their ballot thrown out as the average state voter, while black and Hispanic voters were twice as likely to have their ballots rejected.
It’s hard to say how widespread the problem is because other states are not as transparent about ballot rejections, but research in California, North Carolina and Georgia found similar disparities by age and race.
And voting-rights advocates say the requirements for witnesses and notary seals may be impossible to meet if voters are under coronavirus-related lockdowns or in self-isolation at the time of the election.
The American Civil Liberties Union and the League of Women Voters are challenging in federal court the Virginia requirement for a witness to a mail-in ballot, arguing it would especially hurt people who live alone.
All of these plans also depend on the Postal Service to deliver ballots to voters and allow them to return them easily. But the USPS warned Congress in early April that it could run out of money in early September due to dramatic drops in revenue caused by the pandemic.
Trump, who has often complained about the mail service’s relationship with Amazon, has threatened to block emergency loans, and the Postal Service’s board of governors confirmed this week that a top Trump donor will be named as the new postmaster general.
Biden has linked the president’s fight over the Postal Service to his criticism of vote-by-mail.
“Imagine threatening not to fund the post office,” Biden said during a recent virtual fundraiser. “Now what in God’s name is that about? Other than trying to let the word out that he’s going to do all he can to make it very hard for people to vote. That’s the only way he thinks he can possibly win.”