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While no one knows whether COVID-19 will still be as acute a problem in November as it is today, elections administrators need to plan for the worst now. That means offering not only vote-by-mail options, but also some safe in-person voting options so that the general election is as resilient as possible. To help states implement this, Congress needs to fund elections at a $4 billion level.
Election thought leaders from around the country have already taken a stab at how to address this issue. My last trip before the country shut down due to the COVID-19 pandemic was to John Wayne Airport in Orange County to attend an event at UC-Irvine hosted by Professor Rick Hasen, who was pulling together thought leaders to deliberate about how American elections can survive a crisis. At the time, COVID-19 only seemed like a problem in China and Italy. While I was at the conference, the U.S. State Department moved countries up the danger scale. The cheery title of the UC-Irvine conference was: “Can American Democracy Survive the 2020 Elections?”
The crises that the UCI conference considered were far broader than just a medical pandemic. We discussed cyberattacks, terrorism — both foreign and domestic — as well as natural disasters like earthquakes, floods, hurricanes and wildfires. An elections administrator from Arizona named Patty Hasen described how her emergency planning for elections had to account for voters who lived at the bottom of the Grand Canyon, who are only reachable by foot or mule, as well as voters who need announcements about elections in Navajo. Meanwhile, Neal Kelley, the registrar of voters for Orange County, California noted that he had a mobile voting van that could provide pop-up voting if a normal polling location was threatened by a disaster, man-made or otherwise.
One of the objectives was to get the conference participants to create a guide for states and localities to make their elections more resilient. The resulting report can be found here. As you might imagine, as we were drafting this document in March, all of the authors had to go into isolation at home and a few participants actually contracted COVID-19. Consequently, the report contains more information on how to conduct an election during COVID than nearly any other calamity.
One of the recommendations from the report is just as crucial now as it was then: “States should develop or revise election emergency plans well in advance of the elections so that they are robustly able to handle foreseeable contingencies, including the new threat to the November 2020 elections posed by COVID 19. These guidelines should provide generous opportunities for eligible voters to safely and securely cast ballots.”
One way to achieve this goal is for more states to offer broader access to vote-by-mail. This has become a flash point because the President has gone out of his way to vilify the practice. Trump has wrongly concluded that voting by mail invites fraud (spoiler alert: it doesn’t) and that vote-by-mail helps Democrats more than Republicans (spoiler alert: it doesn’t).
So why didn’t the UCI report go for just vote-by-mail as the single solution to the 2020 elections? For a number of reasons, including the insights from current and former elections officials in the group, who pointed out that all the eggs-in-one-basket approach is not the way to build a resilient election. Instead, we suggest a combination of robust vote-by-mail options as well as safe in-person options. We argued, “states should modify election procedures as necessary to deal with the rise of COVID 19. Having a diversity of avenues for voting in person, absentee, curbside, on site at hospitals and other such facilities enhances the stability of the system, maximizing the likelihood that elections may continue despite whatever unexpected threat emerges.”
COVID-19 has already revealed all sorts of vulnerabilities in the way America worked just a few months before. And there are a few vulnerabilities that are particular to creating a 100 percent vote-by-mail system. First, certain areas of the nation don’t have access to reliable mail service, as the 9th Circuit Court recognized in a recent case DNC v. Hobbs, which came out of Arizona. The court ruled that “Arizona’s American Indian and Hispanic communities frequently encounter mail-related problems that make returning early ballots difficult. In urban areas of heavily Hispanic counties, many apartment buildings lack outgoing mail services. Only 18 percent of American Indian registered voters have home mail service. White registered voters have home mail service at a rate over 350 percent higher than their American Indian counterparts.” Turns out that you don’t have to be at the bottom of the Grand Canyon to have poor mail service — just living on a Native American reservation involves mail accessibility problems.
There are also issues with the supply chain for this type of voting program. States need to order paper ballots from printers to run a vote-by-mail election. They also need extra big envelopes to mail the ballots to voters and envelopes to allow the voter to mail them back. NYC Board of Elections reportedly stated in May that there is a national shortage of envelopes. Given that as of 2018 there were 153 million registered voters in the U.S., sourcing envelopes just became mission-critical to having a functioning election.
The U.S. post office is also vulnerable in this scenario. A short postal strike could hamper the delivery of ballots back and forth from voters. Granted, the last time there was a postal strike was in 1970. But it’s not impossible. Another factor is the risk that COVID-19 can and will continue to pose for postal workers. In late April 2020, over 1,200 postal workers had tested positive and over 30 had died. What that picture will look like in October and November is a known unknown. A diminished workforce of mail carriers could impact the timely delivery of ballots as well.
On top of all of that, there is the President’s personal antipathy against the Post Office and the postage rates it charges, which seems to be part of his ongoing grudge match with Amazon CEO Jeff Bezos. Given this lingering vendetta, there’s a chance the sitting president will do anything he can to make the Post Office’s life more miserable or mail service less reliable.
Finally, there is the scaling-up problem that can tax even the most competent administrators. As Michael Waldman, head of the Brennan Center, said during a recent presentation on voting during COVID-19, Wisconsin had vote-by-mail policies in place, but the system buckled under the weight of a million extra voters asking for sudden access to vote-by-mail opportunities for its spring primary. This forced many voters to vote in person during a pandemic. Now 67 people who took part in that election are suspected of catching COVID-19 that day. States now have more time to plan to ramp up than Wisconsin did this spring, but for states that haven’t offered vote-by-mail widely before, transitioning to any all vote-by-mail system in 2020 could be a real challenge.
We need election officials to walk and chew gum at the same time. They need to offer safe in-person voting options like early voting so that there is not a massive crush of voters on Election Day. And those in-person options need to be safe with enough space for social distancing and PPE for poll workers and voters. Offering drive-up drop-offs of mailed ballots is another way to give voters and election officials more options for a safe election during a crisis.
Ciara Torres-Spelliscy is a Fellow at the Brennan Center for Justice, a professor of law at Stetson University and the author of the book, Political Brands.
