David Cole in NYRB:
Why was there so much drama over such a minor election? And what does it portend for the momentous election coming in November? The answer is disturbing: in the coronavirus pandemic, Republicans may have discovered the ultimate voter suppression tactic. For years they have sought to erect obstacles to voting, imposing strict voter identification requirements, limiting registration opportunities, purging voter rolls, and opposing early voting—all ostensibly in the name of fighting in-person “voter fraud,” even though there is virtually no evidence that anyone unlawfully impersonates a voter at the polls. Many Republicans believe that low voter turnout favors them, because older and wealthier citizens, disproportionately Republican, vote more regularly than younger and poorer citizens, who tend to favor Democrats. But the suppression tactics the party has previously pursued pale in comparison to fear of contracting a deadly disease, which is certain to deter many people from going to the polls. And that’s apparently how some Republicans like it.
The obvious answer to the problem of how to preserve democracy in a pandemic is to expand voting by mail. Failing to make absentee voting in these circumstances available to all is an impermissible burden on the constitutional right to vote—just as providing only a single polling place for a large district would be. The Supreme Court has declared the right to vote “of the most fundamental significance under our constitutional structure.”1 States must provide adequate opportunities to vote, and when they do not, even if the immediate cause is beyond their control, they violate the Constitution. For example, when a hurricane hit Florida during the last week of voter registration in 2016, the state was constitutionally required to extend the registration deadline.2 The usual deadline was permissible under ordinary circumstances but became unduly onerous in the emergency conditions created by the hurricane. The same rationale holds with respect to rules that restrict voting by mail. They might be reasonable in ordinary times, but not when the alternative is to risk contagion in order to exercise one’s right….
How states conduct an election by mail also will make a difference. The ACLU, of which I am the national legal director, has already filed five lawsuits to compel states to increase access to voting by mail during the pandemic. In our suit in Texas, a state court ruled that all voters may vote by mail. (The state had argued that fear of coronavirus infection was not a sufficient excuse.) In Missouri, Georgia, Virginia, and South Carolina, we are challenging various rules that make absentee voting unnecessarily burdensome in a pandemic, including requirements that an absentee ballot be notarized or witnessed, or that voters provide their own postage to return the ballot, a practice that requires people to pay to vote and will foreseeably reduce returns, especially at a time when many people may not have stamps on hand.
States must also develop procedures for absentee ballots that contain errors. Mailed ballots tend to have a higher error rate than in-person ballots, because there are no poll workers on hand to answer questions. The best practice is to notify voters who have committed an error and allow them to clarify their intentions within a reasonable time.
As the five states that already conduct their elections by mail have shown, it can be done. But perhaps the biggest factor in whether it will be done properly in November will be resources. The pandemic will lead to unprecedented numbers of absentee ballots, and dealing with them responsibly and securely will be costly. Wisconsin illustrates the problem. It received 1.27 million requests for absentee ballots, a ninefold increase over the previous election, and the state was unprepared to deal with that surge in demand. So if voting by mail is to work, states will need support. The Brennan Center for Justice has estimated that administering free and fair elections in November will cost approximately $2 billion.7 But in its first stimulus package, Congress provided only $400 million, and the second stimulus law includes nothing more. There is likely to be still more stimulus legislation in the coming months, but it is crucial that it include substantially more funds for election administration. Moreover, voting by mail requires a functioning post office—which may account for President Trump’s hostility to a bailout for that struggling but essential government service.
Some critics of voting by mail, including President Trump, claim that mailed ballots increase the risk of fraud. While there is virtually no evidence of fraudulent in-person voting, there is some evidence of fraud with mailed ballots. In North Carolina, for example, a 2018 election had to be rerun because a Republican operative had illegally collected and tampered with absentee ballots. But fraud in absentee ballots is also exceedingly rare. One comprehensive study by News21 identified about five hundred instances between 2000 and 2012—a period when billions of votes were cast. At that scale, five hundred isn’t even a rounding error. When measured against the cost of citizens being deterred from voting out of fear of infection during a pandemic, it cannot justify restricting voting by mail.
Moreover, there are steps that officials can take to prevent fraud. The election law scholar Rick Hasen, a professor at UC Irvine Law School, recommends that states investigate and prosecute abuse where they find it; send a ballot application rather than a ballot to all registered voters, thus limiting delivery of ballots to incorrect addresses; and restrict the number of ballots any one person can collect from others. Some such collection is necessary for persons who live far from postal service, including on Native American reservations, but the practice should be limited to avoid opportunities for significant tampering with or destruction of ballots.