Long before the advent of COVID-19 and the havoc it is playing with the right and opportunity to vote, there were fears that another close presidential election like 2016 might create something of a crisis of legitimacy. In part those fears arose from the scattered evidence of skullduggery (some with a Russian accent) in favor of Donald Trump in 2016. But more ominous has been the increasingly evident willingness of Republicans (beginning with Donald Trump’s blithe and totally undocumented allegation that “millions of illegal votes” were cast for Hillary Clinton) to intensify their famously empty claims of “voter fraud” whenever demographic groups that lean Democratic are encouraged to cast ballots.
Now that state-run electoral systems are in chaos in the midst of a pandemic, with no assurances the conditions for normal voting behavior will return by November, the odds of a contested general election (not just by Trump, but by elements of both parties) have gone up. Election law expert Rick Hasen is sounding the alarm:
[I]f the pandemic is still limiting our ability to move freely about society in the fall, the amount of absentee balloting is going to explode whether Congress mandates an expansion of absentee balloting or not [it didn’t!]. We have already seen the huge growth in absentee ballot requests for Wisconsin’s April 7 primary, along with legal challenges surrounding the state’s voter ID law. Vote by mail is an important step in ensuring that even if the virus keeps people away from physical polling places, millions of Americans will have a means of avoiding disenfranchisement. But it is not perfect.
Vote-by-mail ballots are more likely to be rejected than other ballots because of problems like signature mismatches. We also know that rejection rates for signature mismatches can disproportionately affect minority voters. Some states do not alert a voter whose ballot has been rejected about the rejection, failing to give the voter a chance to cure something like a purported signature mismatch. Signature matching is also a notoriously subjective endeavor. Even before the coronavirus pandemic, the issue has led to litigation over whether those voters are being unconstitutionally denied their right to vote. Some disabled voters, meanwhile, may need to vote at physical polling places because they lack the physical ability to fill out a ballot at home. These voters too risk disenfranchisement. And in the 11 states without online voter registration, even registering to vote in time for the election may pose a great challenge if government offices are closed or maintaining only limited hours.
All these issues Hasen raises are aside from the stark inequities that may govern voting-by-mail in different states, depending in part on their experience (or the lack thereof) with this kind of voting, and in part on the hostility to early voting traditionally exhibited by the Republicans who govern many states and localities. Check out this recent op-ed from conservative columnist Quin Hillyer:
To put it bluntly, widespread mail-in balloting is a mess. It often delays final election results for days or even weeks, and it is a system that makes it much, much more difficult to detect and deter vote fraud.
As election-law veterans J. Christian Adams and Hans von Spakovsky recently wrote, “Voting by mail is the single worst form of election possible. It moves the entire election beyond the oversight of election officials and into places where the most vulnerable can be exploited by political operatives.”
Adams and von Spakovsky are notorious conspiracy theorists of voter fraud, but Republican election administrators who pay attention to them are not likely to handle voting-by-mail in a voter-friendly manner, are they? And 2018’s experience also shows that the slower voting counts that invariably accompany voting by mail (because of the need to verify signatures, and in some states, to accommodate mail ballots postmarked on or near election day) are prone to being interpreted as sinister rather than natural by a lot of conservatives. More from Hasen:
[T]he need to process millions more absentee ballots without adequate funds and training means November’s election results could well be delayed. This is especially worrying in Detroit and Philadelphia because both cities have a history of poor election administration, and both of their states, Michigan and Pennsylvania, have recently adopted no-excuse absentee balloting—and both states play a critical role in the outcome of the Electoral College that determines the presidency. Delay is going to lead to cries of fraud, when in fact good election administration—especially when dealing with absentee ballots—takes time.
What if Trump is ahead in Michigan and Pennsylvania on election night and he declares victory, but after millions of absentee ballots are processed a week or so later Biden is declared the winner in those states and wins the election? Will Republicans believe Trump if he claimed the later count was the result of fraud, despite all evidence to the contrary?
So what can be done to reduce the risk of Election Night (and post–Election Day) chaos and potentially a contested election? Hasen does have recommendations:
If Congress is not going to step up, states need to find money in their already strained budgets to make sure that election administration is adequately funded. States need to assert more authority over local jurisdictions to manage the expected surge in absentee balloting, the added expenses of running polling places consistent with stringent health requirements, and other potential threats to the election like cyberattacks. Too much local control in election administration is a recipe for disaster because in a close election everyone will look at the small number of places where things failed, not the vast majority of places that manage to conduct a single election well. State legislatures need to give state election administrators more power over poorly performing election offices. States also need to advertise and impose heavy penalties on those who would tamper with absentee ballots, especially if states send absentee ballots to all registered voters (some of whom may have moved or died).
That adds up to a tall order given America’s chronically underfunded and ridiculously decentralized nonsystem of holding elections. But the last thing we need in this star-crossed year is to end it with an intense political, or even constitutional, crisis.