America's decentralized system of voting means states enjoy broad leeway on setting election rules. Many voters may not realize that state procedures vary widely on everything from registration deadlines, ID requirements and types of voting machinery to who is permitted to vote absentee and when mail-in ballots must be postmarked in order to be counted.
But in the coronavirus pandemic, a lack of federal election funding, partisan disunity and legal disputes could produce last-minute logistical confusion and drastic disparities across state lines in voters' ability to safely access a ballot.
Last week's election in Wisconsin ignited outrage from voting rights advocates, who claimed courts' refusal to grant Democratic Gov. Tony Evers' last-minute request to suspend in-person voting and extend the absentee ballot return deadline forced voters to choose between democracy and their health. The April 7 balloting turned into an administrative fiasco of mass polling-place closures, backlogs that caused 11,000 absentee ballot requests to go unfulfilled, and at least 35,000 voters receiving absentee ballots with incorrect return instructions.
It was a wake-up call, and all states will have months rather than days to plan for worst-case November scenarios. But there's no guarantee politicians, election officials or judges will arrive at agreement on how best to adapt in time for an anticipated crush of voters if social distancing measures persist or must resume.
President Donald Trump savaged the most obvious work-around when he tweeted on April 8 that mail-in voting carries "tremendous potential for voter fraud, and for whatever reason, doesn’t work out well for Republicans."
The president's assertion seemed to ignore that all states already employ some form of mail-in voting, instances of fraud are exceedingly rare and he himself cast a Florida mail-in ballot last month. Numerous GOP state-level chief election officials have disputed Trump's claim, vouching for the effectiveness and security of mail-in voting.
Nonetheless, if Republican policymakers were to follow Trump's lead in opposing expansion of mail, experts warn it could lead to bitter partisan stalemates and overwhelmed election offices in some of the highest-stakes 2020 states, such as Florida, North Carolina, Michigan, Pennsylvania and Wisconsin.
In the 2018 midterms, 25 percent of America's 120 million voters cast ballots by mail, a historic high, according to the U.S. Election Assistance Commission's official Voting Survey. But 56 percent of the electorate still voted the traditional way — in-person at polling places — and 58 percent of America's more than 600,000 poll workers were age 61 or older, a high-risk group for COVID-19.
Of course, the states best equipped to weather a public health emergency are those that already have robust remote voting systems.
Five states have now fully adopted all-mail elections: Oregon, Washington, Colorado, Utah and Hawaii. And according to the EAC's 2018 data, mail accounted for a majority of votes in four other states, all in the West: Arizona (78 percent), Montana (73 percent), New Mexico (65 percent) and California (60 percent). The next highest state was Florida (32 percent), which relies heavily on both mail and in-person early voting.
But in the 40 other states and the District of Columbia, mail-in ballots accounted for just nine percent of all votes cast in 2018, while 70 percent of the vote was cast on Election Day. And some of the states with the lowest mail-in shares are some of the highest-stakes in the Electoral College: North Carolina (3 percent), Pennsylvania (4 percent), Wisconsin (6 percent), Georgia (6 percent) and Texas (7 percent).
Of the nation's largest states, Texas has the most stringent absentee laws: it limits mail ballots to those who are either over age 65, plan to be absent from their county on Election Day, are disabled by a "sickness or physical condition," or are jailed. State District Judge Tim Sulak has issued an injunction adding fear of contracting COVID-19 as a qualifying reason vote by mail, but the state's GOP attorney general is expected to oppose that in an appeal and all nine of the state's Supreme Court justices are Republicans.
Several other states with low mail shares have taken steps to expand access to mail voting, even before the outbreak. In a 2018 referendum, Michigan scrapped a requirement for voters to list an excuse to vote absentee. In 2019, Pennsylvania Gov. Tom Wolf signed "no excuse" absentee voting into law. And Gov. Ralph Northam has signed a law making Virginia the 34th "no excuse" absentee state in the nation and Election Day a state holiday.
"We've got more diversity in state election rules now than we had a few decades ago. Those differences may be even more consequential now, when a pandemic is a deterrent to face to face voting," said Prof. Barry Burden, director of the Elections Research Center at the University of Wisconsin. "There's still a lot of variability in what a voter needs to do to return an absentee ballot. And these little administrative details become really important (to turnout)."
According to the National Conference of State Legislatures, 16 states still require some type of excuse to vote absentee, three states (including Wisconsin) require voters to submit a copy of photo ID along with their absentee application or ballot and 11 states (including Wisconsin and North Carolina) require a notary or witness to sign an absentee ballot envelope before it's returned. Furthermore, only 16 states have statutes requiring local election officials to provide return postage for mailed ballots. In a crisis, it's easy to imagine state legislatures and parties revisiting and litigating all of these potential barriers to participation.
But experts warn that even with relaxed absentee rules and months to prepare, scaling up to satisfy a deluge of absentee ballot requests will be a herculean task for states and counties — and that local governments will need far more than the $400 million in emergency assistance Congress allocated in the CARES Act.
"If you've only got 6 percent vote-by-mail and you go to 50 percent, there are enormous challenges," warned Rice University Prof. Robert Stein, who has advised local governments on election administration and emergency contingencies. "From securing a vendor to print the ballots to getting the ballots mailed, opening ballots with gloves, checking signatures, counting them — and then doing it all on Election Night by 9 p.m. You have to bring in far more people. It's a daunting resource problem, in terms of both people and money."
The biggest clue as to how states might adapt their voting methods amid a public health emergency might be what states facing spring elections are already doing. Although it would require a highly unlikely act of Congress to delay the November election — as 16 states have done with their spring primaries — states have taken critically different approaches toward enabling voters to skip the polling place.
In California, officials converted a hotly contested May 12 special election for a vacant congressional seat into an all-mail election and all voters will be sent a ballot automatically, minimizing obstacles and confusion. It helps that two thirds of the district's voters are already on a permanent list to vote by mail.
In Nebraska, where GOP Gov. Pete Ricketts has pledged to proceed with the scheduled in-person primary vote on May 12, voters must take the extra step of filling out an absentee ballot application to bypass the polls, but voters in all 93 counties are being mailed applications automatically.
However, in Ohio, where GOP Gov. Mike DeWine signed legislation to convert the canceled March 17 primary to an all vote-by-mail election on April 28, would-be voters must jump through more hoops: the state is mailing all voters postcards with instructions for requesting and mailing in an absentee ballot application, placing the burden on voters to obtain one.
That kind of approach — if adopted by states for November — could more severely curtail turnout among lower-propensity voters, who skew young and non-white.
Since the WHO declared a global pandemic on March 11, four states have held presidential primaries. In Arizona and Florida, both states where majorities of the electorate routinely vote early in person or by mail, the outbreak posed less of an impediment. Total votes cast in the March 17 Democratic presidential primary were up 26 and two percent over 2016 levels, respectively.
But Illinois (March 17) and Wisconsin (April 7), states with less vote-by-mail experience, were logistical messes. Total votes cast were down 24 percent and 8 percent from 2016, respectively — significantly lagging most other states.
"My number-one fear is that voters will want absentee ballots and will request them on time, but the system will be overloaded and unable to deliver them back," said Prof. Edward Foley, director of the Election Law program at The Ohio State University's Moritz College of Law. "Wisconsin made pretty clear this is an issue that needs to be front and center, and that there needs to be some kind of emergency backup."
Foley suggested that federal write-In absentee ballots, currently limited to military and overseas voters who don't receive absentee ballots on time, be made available for domestic emergency use.
He also predicted partisan flashpoints that could merit Supreme Court arguments between now and November. Those could include rules on when ballots can be postmarked to count (according to NCSL, only 15 states allow mail ballots to count if they are postmarked by Election Day but received in the days following) and organized collection of absentee ballots by volunteers or workers (often referred to as "ballot harvesting"), a newly legal practice in California that many Republicans decry.
Other voting advocates fear that Trump's threatened opposition to bailing out the Postal Service could render it "financially illiquid" by Sept. 30 and hamper its ability to deliver mail reliably amid an unprecedented surge of mail-in ballots.
In a sense, the decentralized nature of America's elections is a security feature; it makes elections harder to tamper with on a massive scale. But as the parties' philosophies on how to hold "fair" elections continue to drift further apart, it also makes it more challenging to establish uniform ballot access across state lines in a crisis and preserve voters' faith in the legitimacy of election outcomes.
Stein's advice to states: to the extent possible, maximize the time frame and modes by which voters can cast ballots, including in-person early voting — and start investing in personal protective equipment for fall election workers.
"The idea that the non-majority vote-by-mail states can move to even 50 percent vote-by-mail by November is unrealistic," Stein says, citing both logistical and political pressures. "But think of it like COVID-19 — try to spread out how we vote."