“Reducing One Source of a Potential Election Meltdown”

Over at the Lawfare Blog (which is quickly becoming a go-to site for longer than op-ed length pieces on election law and the virus), I’ve posted this essay, which addresses one particular risk of mail-in voting.

If Congress or individual States go to all mail-in balloting this fall, it’s important we reduce the risk of large vote shifts occurring well after Election Night. Such shifts, even if the result of fair processes, could in our political climate quickly trigger charges of election manipulation, rigged elections, and worse. The way to reduce this risk is to reduce the number of ballots that cannot be counted until after Election Day. The idea is to reduce the gap between the election night count and the final count—and, in turn, reduce the risk of the perceived legitimacy of the election spinning out of control.

Here is an excerpt:

The first measure should be easy to adopt, yet many critical states have not done so. For absentee or mail-in ballots that arrive before Election Day, states should require the processing of these ballots before the polls close—determining whether the ballots are valid, then opening them and feeding them into scanners, without tabulating the count. The states would then be set up to immediately tabulate these ballots on Election Day and include those numbers in the count released after polls close. Some states sensibly do this already. In California, for example, processing these ballots begins up to 20 days before the election; the counting begins up to 10 days before in some jurisdictions or at 5 p.m. the day before the election in other jurisdictions.

But in several critical, large states—which already faced significant numbers of mailed-in ballots, even before the arrival of the virus—laws prohibit even starting to process these ballots before Election Day. . . .

In addition, some states prohibit the return of absentee ballots to polling places or even in-person at all. Those laws should also be changed and doing so should not be controversial. Voters should have the option of returning ballots to polling places, or at the very least, to the relevant election administrative body. That would also reduce the number of ballots that can’t be counted until after Election Day. …

The second measure moves into more controversial terrain. I’ll present the suggestion in a softer and a stricter form. Many states treat absentee ballots as valid if they are postmarked (or barcoded) on or before Election Day; this means that states will not be able to begin the processing, let alone the counting, of these ballots until several days after the election. Some states modify this a bit by requiring that the ballots arrive by a set time on Election Day. In the softer form of the proposal, to reduce the number of late-arriving ballots, states and the political parties should make major efforts to encourage voters to send in their absentee ballots well before Election Day, rather than at the last minute. There can be no objection to that.

The stricter form would be to require that mail-in ballots for the presidential election be postmarked (or barcoded) not by the time polls close on Election Day, but three or four days before then. This would be analogous to early voting, another means to make voting more convenient, which typically shuts down a day or more before Election Day to enable smooth administration of the election. …

There are still easy steps to take that reduce the risk of an election that sits unresolved for more than a week, or that involves a blue or red shift that appears to change the outcome. Other steps involve trade-offs. From the vantage point of 2020, the disputed 2000 Bush-Gore election looks like a time of innocence. Given the current political moment, it’s necessary to consider what trade-offs are appropriate to reduce the magnitude of a blue or red shift that would almost certainly destabilize the legitimacy of the election.


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