Why Congress’s Battle over Balloting May Fizzle

Election volunteer Nancy Gavney verifies voter and witness signatures on absentee ballots at City Hall during the presidential primary election in Beloit, Wisc., April 7, 2020. (Daniel Acker/Reuters)
Despite real disagreements over how to safely expand voting options in November, there could be more common ground than there seems.

With Congress back in session, one big question is what, if anything, legislators will do to help ensure the safety and integrity of November’s elections.

Congressional Democrats are proposing to give states roughly $4 billion “to enact a slew of policies that range from requiring states to enable online and same-day voter registration, to mandating prepaid postage on mail-in ballots, to a nationwide minimum of 15 consecutive days of early voting,” the Wall Street Journal reported last week.

Meanwhile, Senate majority leader Mitch McConnell adamantly opposes the federal government’s usurping the states’ power to run their own elections. “The federal government is not going to take over the way we do elections,” McConnell told the Journal. “They’re done at the state and local level and every state is different. They’re fully capable of doing that, as they have for many years.”

This disagreement is real, but if you look a little closer, the divide between Democrats and Republicans may not be as stark as it seems.

McConnell opposes the federal government’s forcing states to run elections in a particular way, but he hasn’t objected to providing more funding to the states to assist with the November elections, and Pelosi hasn’t yet insisted upon attaching strings to such funds.

Many conservatives and Republicans are wary of making the kind of all-mail elections run in a handful of states, such as California, the nationwide norm, seeing that as a recipe for disaster. “I don’t think that we should be seeing an election in which ballots are sent directly to all people registered because of, among other things, the inaccuracies of voter-registration records nationwide and the logistical burdens that would impose,” says Jason Snead, the executive director of the Honest Elections Project, which he founded in February after working for a decade at the conservative Heritage Foundation.

But here again, there’s reason to believe a partisan fight will be avoided, because it seems unlikely states are going to completely switch to California-style all-mail elections. “It would be impossible for a state to have an all-mail election on such short notice,” says Wendy Weiser of the liberal-leaning Brennan Center. “I think what everybody is really going towards is moving as many voters as possible to mail ballots while maintaining polling-place options.”

“It makes sense to see expanded absentee voting” amid the COVID-19 pandemic, Snead says, because it would “make sure that people who are among the most vulnerable elements of society have the opportunity to get a ballot and vote safely.”

Twenty-nine states already have no-excuse absentee voting, including the most hotly contested 2020 presidential and Senate battlegrounds: Wisconsin, Michigan, Pennsylvania, Florida, Arizona, North Carolina, Georgia, Iowa, Montana, and Maine.

In other words, even if states pass no new legislation regarding how to conduct the November elections, the states that are going to decide control of the White House and the Senate are going to hold elections where the overwhelming majority of voters vote absentee or early.

The April 7 election in Wisconsin proved as much: With only a few weeks’ notice following the outbreak of the coronavirus, more than 70 percent of Wisconsin voters opted to cast absentee votes by mail or voted early in person, sometimes at drive-in, curbside polling places. (Wisconsin’s election also proved that in-person voting, with proper precautions, does not have to cause a spike in coronavirus infections.)

“Even without changing any rules about the election, states are going to incur significant costs just to be able to respond to the changing ways in which Americans are going to be voting,” says Weiser. She points to the additional need for personal protective equipment, poll workers, improved computer systems for voter registration and requesting ballots, and paper and postage for mail-in ballots. In Wisconsin’s April elections, she notes, not all absentee ballots were processed in time, and in November twice as many such votes will be cast in the state.

While Weiser would prefer to see Congress “set some minimum standards for what kinds of procedures need to be in place” in November’s elections, she says “the most important thing Congress can do is get money to the states and localities. That needs to happen, and it needs to happen quickly.”

It remains unclear whether Democrats in Congress will dig in on forcing states to adopt particular election procedures, but there’s good reason to think Republicans would be open to sending money to the states for elections without strings attached. Congress already agreed in the CARES Act to appropriate $400 million for elections. The pandemic has blown a hole in state budgets, which, unlike the federal budget, are in most cases required by law to be balanced. And the demographic that is most threatened by the virus — the elderly — skews Republican.

There will, of course, be significant fights in the states and the courts over expanded absentee voting. Snead urges states to ban “ballot-harvesting” — the practice of third-party collection of ballots — in order to combat potential intimidation and voter fraud as well as the spread of the virus. Yet, in January, the 9th Circuit Court of Appeals struck down Arizona’s laws banning ballot harvesting and out-of-precinct voting as violations of the Voting Rights Act. And last week, Arizona’s attorney general asked the U.S. Supreme Court to review that decision.

But such thorny issues are, if anything, one more reason to think Congress is going to send states money for elections without strings attached, rather than attempting to impose a universal set of election procedures on them: The low-hanging fruit is the likeliest to get picked.


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