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Bill Theobald
Bill Theobald is senior writer at The Fulcrum, where he focuses on everything to do with voting. This December marks his 40th anniversary in the business, and he still believes -- now more than ever -- that the glow from great journalism can truly light the world.
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Sara Swann/The Fulcrum
Bogus fraud claims cloud real obstacles to expanded mail voting
May 28 2020
On the surface, the idea of conducting elections mainly by mail appears deceptively simple. It evokes images of a serious-minded citizen at the kitchen table, poring over information about candidates before thoughtfully marking a ballot, slipping it in an envelope and dropping it in the corner mailbox.
But the history of recent elections show that, even though such absentee ballots have accounted for only a quarter or so of the total vote, the system has faced serious obstacles. Suddenly doubling or even tripling the mail-in volume, which looks very plausible this November because of the coronavirus, will only magnify those challenges.
Compounding the problems is how the issue has become yet another partisan fight — with Democrats all in favor and President Trump pushing Republicans to oppose efforts to make voting by mail more available and reliable. The president's vastly overblown claims about a looming explosion of voter fraud, in particular, are overshadowing genuine worries about the abilities of election officials and the Postal Service to handle the coming surge of ballot envelopes.
<p>Consider just two elections last month.</p><p>The Wisconsin Elections Commission reported last week that nearly two-thirds of the 1.6 million people who participated in the spring primary cast ballots by mail. That's nearly six times the number for any other primary in the state's history.</p><p>But the surge left election officials short of basic supplies, including 600,000 envelopes. The commission reported that in Milwaukee, the state's largest city, about 2,700 absentee ballots were inadvertently never sent out. And in another population center, Appleton and Oshkosh, computer and mailing problems combined to cause about 1,600 absentee ballots to never get processed.</p><p>Meanwhile, nearly 10 percent of the ballots could not be delivered for the first mostly mail-in election in Maryland history, to fill the Baltimore congressional seat opened with the death of the venerable Democrat Elijah Cummings. And the problem is getting worse ahead of the statewide primaries next week: More than 1 million forms will not be produced in time to make good on a mail-voting-for everyone promise in the state's biggest city and its biggest county, Montgomery, adjacent to Washington. </p><p>According to the most definitive survey of state election officials conducted after every general election — by the Election Assistance Commission, the main federal voting oversight office — 25 percent of all votes came through the mail in the 2018 congressional midterm, the same as in the presidential election two years before.</p><p>The EAC said that 42.4 million mail ballots were sent to voters ahead of the last election, but more than a quarter of them were never used — mainly because they were returned as undeliverable, got mangled in transit or were ignored by people who decided either to vote in person or not to vote at all.</p><p>That leaves 31 million votes submitted by mail. But the contents of 8 percent of them, or 2.5 million, never became part of the tabulated results. A small share of them had been completed by people who were not registered or eligible to vote, or by people who also voted in person. </p><p>But the EAC says three reasons accounted for the bulk of rejected ballots, and they were the same as the top reasons in every recent election:</p><ul class="ee-ul"><li>The ballot was not received on time at the election office. In 38 states, absentee ballots are counted only if they arrive on or before Election Day. The rest require an Election Day postmark but permit delivery between a day and 10 days later.</li><li>The signature on the ballot was judged not to match the one on file with election officials. Signature matching has been a source of controversy and the subject of several lawsuits because in many cases there are few guidelines and no training given to the officials comparing the signatures.</li><li>The ballot or return envelope was not signed at all by the voter -- or, in 11 states, was missing the signature of a required witness. Not all states have laws requiring voters to be informed of such mistakes and given a chance to fix them.</li></ul><p>Whatever the reasons, the numbers do not support the assertion by the right-leaning Public Interest Legal Foundation last month — and widely repeated by allies of the president — that more than 28 million mailed in ballots "went missing" over the course of the past four national elections.</p><p>The <a data-linked-post="2640174112" href="https://thefulcrum.us/vote-at-home" target="_blank">National Vote at Home Institute</a>, a leading advocacy group for making mail ballots the national norm, has been forceful in responding, pointing to data showing most of the ballots the conservative group is talking to were set aside by people who decided not to vote. </p><p>"It is important that this system is evaluated with facts, not misinformation," the group says. </p><p>Even with these hiccups, turnout in three of the states with universal vote-by-mail systems — Colorado, Oregon and Washington — was in the top eight among the 50 states last time. The exception was Utah, which was at the national average. Hawaii, which had the lowest turnout in 2018, is hoping to change that by mailing everyone ballots starting this this year.</p><p><br></p><div class="rm-embed embed-media cc_cursor"><iframe frameborder="0" scrolling="no" src="https://flo.uri.sh/visualisation/2593707/embed" style="width:100%;height:600px;"></iframe><div style="width:100%!;margin-top:4px!important;text-align:right!important;"><a class="flourish-credit" href="https://public.flourish.studio/visualisation/2593707/?utm_source=embed&utm_campaign=visualisation/2593707" style="text-decoration:none!important" target="_top"><img alt="Made with Flourish" src="https://public.flourish.studio/resources/made_with_flourish.svg"> </a></div></div><p>And even without any more states relaxing their remote voting rules, or courts ordering them to do so, some experts were already predicting a record overall turnout eclipsing 70 percent in the fall presidential election.</p><p>Not every progressive group is enthusiastic about the move toward expanded voting by mail.</p><p>The <a data-linked-post="2638969877" href="https://thefulcrum.us/naacp" target="_blank">NAACP</a> and the Center for American Progress put out a joint report last month that praised efforts to make it easier for those who are quarantined or acting as caregivers to vote from home. But the report warned that "eliminating or reducing in-person options would inadvertently disenfranchise many African-American voters, voters with disabilities, American Indian and Alaskan Native voters."</p><p>The report notes that black people have a traditional preference for voting in person. But they also move more frequently than any other demographic group and are more likely to be homeless — both circumstances that make voting by mail more difficult. For disabled voters, many of the resources they need to vote independently are often only found at polling sites. Meanwhile, people living on tribal lands often do not have access to reliable postal service because there are not always official street addresses.</p><p>As a <a data-linked-post="2638675692" href="https://thefulcrum.us/directory/brennan-center-for-justice" target="_blank">Brennan Center for Justice</a> report released this month points out, conducting an election this fall mostly by mail requires overcoming numerous hurdles and making decisions that require action in the next few months. Among the obstacles it cites:</p><ul class="ee-ul"><li><strong>Online absentee applications.</strong> While all but nine states permit online voter registration, only 15 allow people to request an absentee ballot online. Implementing such a system would take several weeks, at minimum, but the payoff is significant. Processing a paper absentee request form takes seven to ten times longer than processing an electronic request.</li><li><strong>Ballot printing.</strong> More absentee voters require larger orders to the printer. But in addition to printing the absentee ballots there is an assembly process required. All told, this may require advancing to the middle of next month the deadline for ordering absentee ballots for November.</li><li><strong>High-speed scanners. </strong>Tabulators at a precinct can scan about a dozen ballots a minute.</li></ul><p>But to handle many thousands more absentee ballots than before, election officials are going to need scanners that can plow through as many as 300 ballots a minute — or else they won't be able to announce results on election night. Filling orders for these expensive machines can take months, and training needs to follow delivery, which is why the Brennan Center says the purchase orders need to be finished by this coming weekend.</p>
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A federal judge has dismissed a lawsuit seeking changes in Georgia's election systems, saying the courts have no role in deciding what is a political issue.
Changing election rules is none of a federal judge’s business, one says
May 27 2020
A federal judge has dismissed a lawsuit seeking to delay Georgia's primary and make other changes to the election rules because of the coronavirus. But what's much more potentially significant is Judge Timothy Batten's reason: The issues raised in the case are political and there is no place for the judiciary to decide them.
Batten's ruling, issued earlier in the month but reaffirmed more forcefully on Tuesday, says the suit raises "nonjusticiable political questions." It is the same, unusual conclusion the Supreme Court reached a year ago in its landmark ruling that federal courts have no place refereeing the limits of partisanship in drawing legislative maps
But it is a wholly different approach than the one taken in a slew of lawsuits filed since the pandemic began, arguing that judges must relax voting regulations that unconstitutionally or illegally imperil the health of voters and poll workers.
<p>In those cases, judges have considered the impact of state and federal laws in light of the current public health crisis by applying a legal balancing standard with ample precedent in voting rights cases. Under that approach, the potential infringement of a citizen's political rights is weighed against the government's interests in setting the rules.</p><p>The Georgia case was filed in April by the Coalition for Good Governance and several of its Georgia members against Republican Secretary of State Brad Raffensperger.</p><p>It called for delaying the June 9 primary by three weeks and also asked the court for a myriad of other changes including the use of paper ballots, curbside voting and protective equipment for poll workers.</p><p>In rejecting a request that he reconsider his initial decision, Batten wrote Tuesday that the problem with the case is "the utter absence of judicially manageable standards to determine the existence or extent of a violation and the appropriate remedy therefore."</p><p>Then he posed a series of questions for which, he said, there are no answers: "How early is too early for the election to be held in light of Covid-19? How many safeguards must be in place to protect those who choose to vote in person from the possibility of contracting Covid-19? What are those safeguards, and when is the implementation of an additional safeguard no longer necessary?"</p><p>Battan was chosen for the bench in Atlanta 14 years ago by President George W. Bush. For his rationale to have truly widespread impact, it would need to be embraced by the 11th Circuit Court of Appeals, which also reviews decisions from Alabama and Florida, and then the Supreme Court </p><p>But voting rights law expert Richard Hasen, a law professor at the University of California-Irvine, says "this move among conservative judges toward nonjusticiability of voting rights claims is especially worrying."</p><p>"The approach of the trial court in the Georgia case would essentially give states a free hand to pass legislation that favors incumbents or a political party and to discriminate against a voting minority in the state with no justification whatsoever," he posted on his blog Wednesday.</p>
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South Carolina voters who want to cast an absentee ballot will not be required to get a witness to sign their ballots, a judge has ruled.
Absentee voting rights push yields a partial win — and three new suits
May 26 2020
Advocates for easing restrictions on absentee voting during the coronavirus pandemic have won a split decision in federal court in South Carolina.
A judge on Monday barred the state from requiring a witness signature on mail-in ballots for the congressional and legislative primaries in two weeks, but she said the state could require those ballots to arrive by the time the polls close.
The ruling was the most important news over the holiday weekend for the cause of easier voting this year, which also brought fresh lawsuits challenging a diverse set of rules in North Carolina, Michigan and New York. These are the latest developments:
<h3>South Carolina</h3><p>Judge J. Michelle Childs ruled that getting close enough to another person to obtain a countersignature on an absentee ballot would subject voters — especially those living alone — to an improper risk of Covid-19 infection in the runup to the June 9 primaries and subsequent runoffs. But she declined to strike down the witness requirement as unconstitutional.</p><p>The state Election Commission said the witness rule was a proper guard against fraud, even after the panel's executive director conceded in a letter to GOP Gov. Henry McMaster this spring the rule "offers no benefit to election officials as they have no ability to verify the witness signature."</p>
<p>The plaintiffs, including the NAACP Legal Defense Fund, sued to allow absentee votes to be counted so long as they are postmarked by Election Day, arguing that first-time mail voters were especially likely to wait until the last minute. The state said waiting for the Postal Service would make it impossible to certify results and get ready for the runoffs. And Childs ruled the poll-closing deadline "is nondiscriminatory."</p><h3>North Carolina</h3>
<p>A group of voters supported by Democratic campaign committees filed a lawsuit in federal court on Monday seeking several changes to make it easier to vote by mail in one of the most politically competitive states in the Deep South.</p>
<p>The suit's bill of particulars is similar to several others the Democrats have brought. It asks a judge to make the state pay the postage on returning absentee ballots; drop the requirement that two witnesses sign the ballot in order for it to be counted; extend the deadline for absentee ballots to arrive at election offices to nine days after Election Day, and give voters a chance to correct signature discrepancies with their ballots. Election officials compare the signature on the absentee ballot with a signature on file.</p><h3>Michigan</h3>
<p>The laws of the state are similar to those in the Carolinas when it comes to returning an absentee ballot: The paper will only get tabulated if it's returned to the proper place before the polls close on election night.</p>
<p>The <a href="http://thefulcrum.us/league-of-women-voters" target="_self">League of Women Voters</a>, represented by the <a href="https://thefulcrum.us/american-civil-liberties-union" target="_self">American Civil Liberties Union</a>, filed a suit asking a state appeals court to make Democratic Secretary of State Jocelyn Benson extend the deadline. It argues that the law, on the books for eight decades, abridges the "unqualified, unconditional state constitutional right for registered voters to vote in all elections by absentee ballot."</p>
<p>The suit quotes Benson's office as saying 1.75 percent of absentee ballots were rejected this month because they arrived after 8 p.m. on primary day. If all 7.7 million people in the state vote in November — only a theoretical possibility, to be sure — that would mean 134,000 disallowed ballots.</p><h3>New York</h3><p>A coalition of disability rights groups sued the Board of Elections in federal court Friday, alleging discrimination against voters who are blind or otherwise physically unable to mark a paper ballot.</p><p>The suit says that while marking a paper ballot may be impossible for disabled people, they can easily mark and send an online ballot. Still, election security officials nationwide have warned that any voting system that connects to the internet is vulnerable to being hacked.</p><p>The groups are hoping for changes ahead of the state's presidential, congressional, legislative and local primarise in just four weeks, in which voting-by-mail is being made widely available to all voters for the first time because of the pandemic. The suit was filed a month after disability rights groups pressed the Justice Department to insist on more secure remote voting options for those who can't reliably use paper.</p>
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