“Democracy Worked This Year. But It is Under Threat”

Emily Bazelon in the NYT Magazine:

America’s pandemic election was a remarkable, unlikely feat. “The challenges and obstacles were perhaps the highest in history, or at least since the Spanish Flu in 1918, and we saw fewer problems than in any presidential election since Bush v. Gore,” said Nathaniel Persily, a Stanford law professor and co-director of the Stanford-M.I.T. Healthy Elections Project. This spring, there were warning signs that with the coronavirus spreading, swing states like Pennsylvania, Wisconsin and Michigan would not be able to set up and run a vote-by-mail operation of unprecedented scale while simultaneously staffing thousands of polling places among them. The checklists were long and logistically complex. The resources were lacking. Asked for $4 billion, Congress allocated $400 million. Election officials in states like Washington and Colorado, where voting by mail is nearly universal, told me that it took them multiple election cycles to get it right. Some primary elections this year underscored the doubts by going badly, with election offices sending thousands of absentee ballots too late to be returned on time (Wisconsin), discarding mail-in ballots for minor errors at alarmingly high rates (New York) or taking weeks to count ballots (New York and Pennsylvania).

But as Nov. 3 approached, county and local officials rose to the challenge. They contracted with printing companies, where workers ran the presses overtime to churn out millions more ballots than had ever been requested before. They coordinated with postal workers to send out ballots and receive them in mass deliveries. They collected ballots from drop boxes and sorted them. They hired tens of thousands of people to open envelopes, inspect the ballots inside for voter errors and feed the verified ones into scanners for tabulation. Thousands of poll workers made voting in person possible, too.

Election officials had help from a small but highly skilled group of academics like Persily. These are the law professors and political scientists who pay continual attention to the health of our elections, focused on sacred questions of voting rights and also prosaic ones about checking signatures. Private philanthropists also provided states with hundreds of millions of dollars to pay for poll workers and personal protective equipment and voter education, expenses the government traditionally covers. After the election, when I asked several academics how the mechanics went, they expressed relief and even sounded a note of celebration. “It could easily have been a total train wreck,” said Michael Morley, a law professor at Florida State University who served in the George W. Bush administration. “Instead, we can be proud about how well our election officials conducted this election under extremely adverse circumstances.”…

This year’s election could well be a turning point for voting by mail in America. In February, Richard L. Hasen, a law professor at the University of California, Irvine, who has studied elections for decades, convened a group of bipartisan experts who proposed a series of nuts-and-bolts changes to make absentee and in-person balloting more accessible.

The reforms included giving voters in every state a chance to fix an error like a missing signature on a mail-in ballot and ensuring that counting ballots isn’t subject to delays. If election officials can begin processing ballots early, this year has taught us, they have time to get in touch with voters to address mistakes on ballots and also complete the count on or close to Election Day.

These are small steps, technocratic rather than visionary, but ones that can help increase participation and trust. Congress could set national standards and fund states to implement them. “It’s time for uniform rules,” said Stephen Vladeck, a law professor at the University of Texas, Austin. “We’ve learned a lot about how ballots should be distributed and validated.”

Yet in recent litigation about voting by mail, Republican lawsuits have resurrected a theory that could prevent state courts and election officials from enacting changes that protect voters from disenfranchisement. The idea is that the rules for an election must come exclusively from the legislature. It derives from the Supreme Court case that effectively decided the presidential election in 2000 — Bush v. Gore. But it has lain dormant since then, because it was never adopted by a majority on the Supreme Court….

So far, these legal developments are a skirmish. At press time, the deadline extensions appeared to have little effect, because the number of mail-in ballots that arrived after Nov. 3 seemed small. But the cases laid the groundwork for future battles over election rules, large and small. “This is now at the top of my list,” Hasen said. “The federal courts are threatening to become the greatest impediment to election reform.”

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