Election Modifications to Avoid During the COVID-19 Pandemic

As we approach the presidential election this November, election officials are developing plans to deal with the unique risks posed by the novel coronavirus that causes COVID-19. I have written about how states have grappled with past election emergencies and am participating in a nonpartisan task force and interdisciplinary working groups to offer recommendations to ensure that election officials are adequately prepared to face the challenge before us. The recent crisis with the Wisconsin presidential primaries demonstrates the importance of states having election emergency statutes that adequately empower election officials to respond to unexpected crises, as well as contingency plans for implementing that discretion. Just as important as discussing the affirmative steps that officials should take to address the COVID-19 crisis, however, is identifying those they should avoid. Because so many groups and experts, along with my previous work, have focused on the first task, it’s time to tackle the second.

Election officials will have at least three major goals concerning the November election. First, most basically, they must ensure that every legally eligible voter has sufficient opportunity to cast a ballot without facing a substantially greater-than-usual risk to their health (under the circumstances, some minimally heightened risk may be inevitable in virtually any activity). Second, they must maintain strong protections against fraud, mistake and other irregularities that may impact the results. Third, election officials must conduct the election in a way that assures the public it was fair and the results are accurate. The Supreme Court has repeatedly held that, when it comes to the integrity of the electoral process and governmental corruption, the appearance of propriety can be just as important as actual fairness.

Elections are fundamentally bureaucratic endeavors. Up to 213 million voters of varying ages, who speak different languages, with different degrees of physical and mental ability, literacy, understanding of the electoral process and voting experience have the opportunity to cast ballots over a period of a few weeks. Largely part-time or even volunteer personnel with limited training and experience staffing thousands of temporary polling locations collectively determine tens of millions of voters’ eligibility; provide them with the correct ballots; and then collect, store and often transport those ballots or resulting electronic records for tabulation. Opportunities for mistakes, misunderstandings or accidents are pervasive. Substantial unanticipated changes to the rules and procedures governing the process—particularly last-minute changes—only magnify the likelihood that such problems will arise. 

Various states have adopted dramatically different approaches to election emergencies. Some states allow election officials to make only limited adjustments to respond to emergencies, such as relocating polling places if they become inaccessible or switching to paper ballots if electronic voting machines fail. Other states grant officials wider discretion to adjust or modify a wider range of election-related requirements. Still other jurisdictions, in contrast, allow officials to temporarily postpone elections if unexpected emergencies prevent them from being carried out. Instead of, or in addition to, election-specific statutes, several states more broadly allow the governor to suspend state laws or statutory deadlines during declared states of emergency when necessary to protect human life. As mentioned above, numerous guides have been, and are being, developed to assist officials in determining how best to exercise these powers. When exercising this authority, developing contingency plans, or even crafting new election emergency statutes (such as the bill recently introduced by Sens. Ron Wyden and Amy Klobuchar), election officials and legislators should avoid adopting any of the following potential courses of action.

Automatically Mailing Absentee Ballots Based on Voter Registration Records

Absentee voting—also called vote-by-mail in some jurisdictions—will likely play a substantial role in the 2020 presidential election. During the 2016 election, nearly a quarter of ballots were cast absentee, though this proportion varied dramatically among states. One obvious way of responding to the pandemic that election officials may be tempted to consider, in states that do not have laws requiring it, is automatically mailing absentee ballots to each registered voter at their address of record. Such a proposal, while well intentioned, would create serious problems and substantially undermine public confidence in the electoral process.

Rather than mailing out actual absentee ballots, election officials can minimize potential difficulties by instead taking the initiative to proactively mail out absentee ballot request/application forms to each registered voter in the jurisdiction. By completing and returning the form, voters can confirm their identity and continued eligibility to vote in the jurisdiction and specify the address to which they wish their absentee ballot to be sent. Distributing absentee ballot request/application forms, rather than actual absentee ballots, is especially necessary in jurisdictions that do not have a history of universal vote-by-mail. Such jurisdictions lack the procedures and policies that states that rely primarily or exclusively on mail-based voting use to attempt to enhance the accuracy of their registration rolls and reduce absentee ballot fraud. The Carter-Baker Commission on Federal Election Reform, the Bauer-Ginsberg Presidential Commission on Election Administration and even progressive groups such as the Brennan Center for Justice acknowledge that, when election fraud occurs, it usually arises from absentee ballots.

The primary reason that election officials should automatically distribute absentee ballot request/application forms, rather than actual absentee ballots, is that many states’ voter registration databases are outdated or inaccurate. A 2012 study from the Pew Center on the States concluded that approximately 24 million records—one out of every eight—contain inaccurate or outdated information. A 2010 study from the Caltech/MIT Voting Technology Project similarly estimated that nearly 9 percent of voter registration records are invalid. Although many states have taken steps to improve their records’ accuracy over the past decade, problems with the validity of voter registration records continue to be identified. Voter rolls may be problematic for a variety of reasons. Most commonly, a person’s voter registration record may not have been cancelled after the individual moved, particularly to a different state or sometimes even county. In other cases, voters have died or been incarcerated for felonies.

Several jurisdictions with automatic voter registration systems have inadvertently registered ineligible noncitizens to vote. And numerous voter registration records are completely fraudulent—often as the result of third-party voter registration drives where participants are directly or indirectly paid based on the number of applications they submit. Both progressive and right-leaning groups have been caught engaging in systematic fraudulent registration schemes, including attempts to improperly register thousands of celebrities, sports figures or completely fabricated people. Attempts to update or correct voter registration rolls are often challenged in court as partisan attempts to “purge” voters. And federal law prohibits states from systematically correcting their voter registration rolls within three months of federal primary or general elections, which effectively limits such efforts to odd-numbered years.

Consequently, there are likely too many inaccurate, outdated or fraudulent voter registration records for election officials to rely on their voter registration databases as the basis for automatically mailing out absentee ballots. There are more than 213 million registered voters in the United States. If even 10 percent of voter registration records are problematic, that means more than 21 million absentee ballots in the presidential election would be sent to outdated addresses, erroneous addresses, nonexistent people or other problematic destinations. Moreover, many voters who have moved would likely request that replacement ballots be sent to their new addresses, leaving millions of duplicate ballots unaccounted for. Having tens of millions of absentee ballots outside of both election officials’ control and the hands of the voters who are supposed to be casting them raises a serious threat to the actual and perceived integrity of the electoral system. Sending an absentee ballot request/registration form to each potential voter instead helps ensure that ballots are sent only to actual voters, the information in those voters’ registration records is correct (or is updated based on the information they send back), and the correct ballots are sent to the right places. 

In addition, even when voter registration records are accurate, voters may not be staying at their addresses of record. If stay-at-home orders remain in place, voters may be staying with family or friends for the duration of the quarantine. If the orders are lifted, voters may be away from home at school or for work. Particularly given the major economic and social dislocations to which COVID-19 has given rise, there may be an even greater need than usual to send voters’ absentee ballots to alternate addresses. Unilaterally mailing absentee ballots to voters’ addresses of record will likely result in millions, and perhaps tens of millions, of ballots being systematically sent to the wrong places. And, again, many voters who are away from home will request that replacement ballots be mailed to them at the addresses where they are staying. Thus, automatically mailing out millions of ballots to addresses where voters are not present will lead to millions of unaccounted-for ballots, which may facilitate ballot theft and can lead to inadvertent or intentional double voting.

Furthermore, a substantial fraction of voters who would receive absentee ballots do not wish to vote. Unilaterally distributing tens of millions of unwanted, unrequested absentee ballots would pose serious risks for the electoral process. The U.S. Election Assistance Commission reports that approximately 65 percent of registered voters cast ballots in the 2016 presidential election, meaning that over a third of the population did not participate. Undoubtedly, many registered voters who wished to vote were prevented from doing so by circumstances beyond their control. Nevertheless, a substantial portion of people who did not vote in 2016 inevitably did so as a deliberate, voluntary choice. A Knight Foundation survey of 12,000 persistent nonvoters found that the most common primary reasons why people decline to vote are that they don’t like the candidates, don’t know the candidates or issues, or believe their vote doesn’t matter. 

Based on these statistics, even if we have record turnout for the 2020 election, it is reasonable to assume that a substantial number of voters will remain uninterested in participating. Automatically mailing absentee ballots to tens of millions people who do not wish to receive or cast them would irrevocably undermine the integrity of the electoral process. It would create a substantial risk of ballots being given away, sold, traded, collected by activists, or stolen from trash cans or mailboxes. Election officials would be able to do very little to prevent fraud or other criminal mishandling of so many ballots sent to uninterested recipients. These risks can be reduced greatly by simply sending out absentee bal

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