As the COVID-19 pandemic roils primary elections around the country, it’s time to worry about the possibility that conditions won’t improve enough to enable a normal general election in November. I wrote about what we can do about that at New York:
[A]s the timeline for getting through the coronavirus pandemic continues to stretch out, buying some time may not be enough to avoid serious disruptions of elections this year. Yes, the two major-party presidential contests may soon effectively end, but there are a host of Senate, House, gubernatorial, and state legislative primaries with significant implications that are scheduled to occur in the spring and summer. And if we are unlucky — or even if fears last far beyond the actual likelihood of COVID-19 infection — this crisis could greatly affect participating in what most people consider the most consequential general election in many years.
The obvious way to separate elections from the fear of coronavirus is to encourage remote voting — usually by mail, but “mail” ballots can also sometimes be placed in drop boxes or even picked up by intermediaries. But moving in that direction nationally is easier said than done, since many states actively discourage this mechanism, and others accept or promote it in widely varying degrees. And in case you haven’t gotten the memo, states and localities run even “federal” elections in this country, with the Constitution and the federal government regulating them around the edges. There is no “national election system,” so big changes like the one we may need this year will probably have to be enacted on a state-by-state basis.
Alabama, Arkansas, Connecticut, Delaware, Indiana, Kentucky, Louisiana, Massachusetts, Mississippi, Missouri, New Hampshire, New York, South Carolina, Tennessee, Texas and West Virginia
Fully 16 states limit remote voting to “absentee ballots” that must be requested by the voter along with an affadavit offering an excuse (typically some unavoidable absence from one’s residence on election day) for not being able to vote in person. Seven of those states waive the “excuse” requirement for voters over a certain age (usually 65). Some of the states that discourage voting by mail do offer early voting in-person (e.g., Texas and beginning this year, New York), which is sometimes viewed as the functional equivalent, but obviously is no substitute during a pandemic.
It will vary state by state as to whether a relaxation or abolition of restrictions on voting by mail can be accomplished by some sort of executive action or will require legislation. But an awful lot of states are holding special legislative sessions to deal with various aspects of the coronavirus pandemic, and they should have an opportunity to liberalize voting rules, even if it’s a temporary measure.
Alaska, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Maine, Maryland, Michigan, Minnesota, Nebraska, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennylvania, Rhode Island, South Dakota, Vermont, Virginia, Wisconsin and Wyoming
Of the 33 states that do allow voting by mail without some excuse, 23 require that voters proactively request a mail ballot. Of those, 9 require separate applications for each election (12 allow for annual applications covering election in a calendar year). Often political parties or advocacy groups are involved — sometimes heavily — in facilitating mail-ballot requests, though in states with in-person early voting that may become the favored nontraditional turnout strategy for particular groups (that’s particularly true of minority voting advocates in the South, for example).
Again, moving toward a system in which voting by mail becomes the rule rather than an exception may require legislation in many states.
Arizona, California, Montana, Nevada, and New Jersey
Five states plus the District of Columbia allow voters to register as permanent voters-by-mail who will automatically receive mail ballots so long as they keep voting regularly. Unsurprisingly, the percentage of voting by mail (and total turnout) has gone up in these jurisdictions.
Permanent voting by mail typically requires state legislation.
Colorado, Hawaii, Oregon, Utah, and Washington
In five states all or virtually all voting is done remotely, generally with an option to mail in ballots or drop them off at voting centers or in special drop boxes (some counties in California have also moved to universal voting by mail). Every registered voter gets a mail ballot for every election without having to request it. In the 2018 general election these states averaged turnout 10 percent higher than the country as a whole.
Moving to all voting by mail does not eliminate all COVID-19 anxieties. Prior to Washington’s March 10 primary, voters and election officials fretted about possible contamination of licked envelopes and stamps, and in the future, poorly staffed postal systems (already an issue in certain rural and tribal areas) could be a problem as well.
States that are already (or are, like California, moving toward) all-mail elections are beginning to take measures to make that method of voting equally accessible to all voters in ways that are often controversial, particularly to Republicans who tend to think of voting as a privilege rather than a right.
Allow proxies to deliver mail ballots
To deal with voters who have limited access to postal services and/or are elderly or disabled, California allows sealed and signed mail ballots to be delivered to election officials by anyone authorized to do so by voters themselves. This practice has been invidiously called “ballot harvesting” by Republicans in California and elsewhere, as though it somehow represents or enables a fraudulent practice. But opening, much less filling out or altering, mail ballots remains a felony in California, so the practice is really no different than asking a neighbor to drop a mail ballot off at the post office. That won’t cut much ice in Republican-governed states absent a real determination to make voting by mail work.
Set the mail-in ballot deadline for Election Day
Another by-product of voting by mail that may cause bipartisan heartburn is the issue of when mail ballots must be returned. Colorado, Hawaii, and Oregon require that mail ballots be received by close of business on Election Day to count, though again, those states make a real effort to provide plenty of drop-off locations. But Utah counts any mail ballot postmarked by the day before the election, and California and Washington count those postmarked on or before Election Day. These latter practices make sense from a fairness point of view: Why should by-mail voters have to anticipate Election Day any more than traditional in–person–on–Election Day voters? But accepting mail ballots — which have to be individually opened and signatures authenticated — so late inevitably slows down the counting and reporting of results. If the whole country moved in that direction, could Americans, the news media, and the two major parties psychologically handle not knowing the results for days after November 3? Is there any remote chance Donald J. Trump would fail to fire off tweets every 15 minutes alleging without a shred of evidence that the godless socialistic Democrat Party was stealing the election with millions of illegal votes from homicidal Mexicans? It’s a real concern.
Perhaps more to the point, getting from today’s system to universal voting by mail — again, even if it’s temporary — could be very difficult. Oregon senator Ron Wyden has introduced legislation to give the transition a real legal and financial boost, as the Washington Post reported:
“Sen. Ron Wyden (D) is proposing $500 million of federal funding to help states prepare for possible voting disruptions caused by the coronavirus outbreak. Wyden’s bill also would give Americans the option to vote by mail in case of a widespread emergency …
“Wyden’s bill would give all Americans the right to vote by mail if 25 percent of states declared an emergency related to the coronavirus outbreak. The bill also would require state and local officials to prepare for possible coronavirus disruptions and to offer prepaid envelopes with self-sealing flaps to minimize the risk of contagion from voters’ licking envelopes.”
The single biggest obstacle to a big push like Wyden’s toward voting by mail is the recent resistance of the GOP to all expansions of the franchise via more convenient registration and voting. Even if Republicans go along with the general drift, they may gnaw at the margins of a universal voting-by-mail system to make it hard to access for voters deemed hostile to their party. But there is one thing about the coronavirus crisis that may jolt Republicans nationally and in the states to change their tune about “convenience” voting measures: The very high likelihood that older voters, who tilt toward the GOP (Trump carried seniors by seven points in 2016), will be most reluctant to risk their health (and in many cases, their lives) by voting in person during the primaries and perhaps in November. For once, Republicans may have a partisan interest in making it easier for everyone to vote. Lawmakers should take advantage of that opportunity.