The Corner

Elections

The Real Challenge of Voting By Mail

With characteristic temerity, President Trump took to Twitter Thursday morning to vent about voting by mail.

 

It’s worth beginning with what’s true: There will surely be far more voting by mail this fall than we have seen before in a national election in America. That’s because election day will come amid a pandemic, and long lines at crowded polling places won’t be safe. We have already seen in primary elections in many states that many voters (of both parties) prefer to vote by mail. Some states are making special arrangements for this—changing laws, investing in technology, and the like. Others aren’t. But all will see much more voting by mail.

We have also seen that voting by mail can slow the counting of votes. Particularly in close races, this sometimes makes it impossible to declare a result on election night. Occasionally, as some primary races have shown us this year, it can take days or even weeks. But the fact that results take longer does not mean those results are tainted. The work of counting mail-in votes, and especially of verifying signatures and resolving disputes, can take time, but this is precisely the work of assuring that results are legitimate and reliable.

It’s essential that public officials help the American public understand this in advance of the fall election, to help voters see that the fact that results may not be available within hours doesn’t mean the results aren’t reliable. In other words, public officials need to be conveying precisely the opposite of the message the president delivered in his tweet. They need to convey that message because it is the truth: There simply is no pattern of elevated fraud with mail-in-voting.

Voting by mail—whether by absentee ballots (which must be requested by voters) or various universal vote-by-mail systems (where all voters receive ballots by mail)—has been pretty common in this century: In both the 2016 presidential election and the 2018 congressional elections, about a quarter of all votes were cast by mail, with more than 30 million Americans voting that way in each case. Five states—Colorado, Hawaii, Oregon, Utah, and Washington—run their elections primarily by mail. And neither in those five states nor in studies looking at absentee and mail-in voting in other states is there any discernible pattern of elevated fraud. As with in-person voting, there are some known instances of fraud involving mail-in ballots of course. But no one has found any broader pattern of such fraud.

There may be solid, civic reasons to dislike voting by mail in normal times. But in a year when voting in person will be unsafe for many Americans, mail-in voting offers a vital alternative, and it is crucial to help voters see that there are not in fact reasons to think that it enables fraud.

Nor, by the way, is there a clear reason to think that mail-in balloting would advantage Democrats, as Republicans seem implicitly to assume. That view seems well out of date at best. Evidence and analysis in this century suggests that mail-in balloting advantages the two parties roughly evenly, and that it is of particular help to older voters, who tend these days to vote Republican.

As for delaying the election, it is as usual a little hard to say just what the president had in mind in his tweet. Waiting until the pandemic threat passes certainly isn’t an option. And even a more modest delay simply wouldn’t be up to him. The Constitution, in Article II, section I, says that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress” and that “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

And the Congress has determined just that. As the law (at 3 USC 1) puts it:

The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.

The law further states, at 3 USC 7, that:

The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.

And it states (at 3 USC 5) that as long as a state certifies its results at least six days before that meeting of the electors, that result “shall be conclusive.”

There is no role for the president in any of this, and his view regarding whether the election should happen on schedule is as irrelevant as mine or (unless you’re a member of Congress) yours.

Should Congress consider delaying the election, then? I don’t think it should. The kinds of challenges that will confront election administrators in this pandemic year don’t lend themselves to being resolved in short order, so that there isn’t really any advantage to be gained by Congress delaying the election a little.

But there may well be a way for Congress to help the election go more smoothly in those later two parts of the code I just cited above. The problem mail-in voting can create, especially in jurisdictions that aren’t used to so much of it, isn’t about fraud but about delays in counting and verifying results. So what may need to be adjusted is not the date of the election but the Electoral College deadlines that follow it.

I made a case for a reform like this (with Kevin Johnson of the Election Reformers Network) earlier this month in the Washington Post. As things now stand, election day is November 3, states need to finalize their results by December 8 to avoid their being challenged in Congress, and then members of the Electoral College are to meet on December 14. Congress certifies the results on January 6, and the winner is inaugurated January 20. That means that there are 78 days between the election and the inauguration, but states have only 35 of those days to finalize their results. As we’ve seen in some primaries this year, that simply may not be enough time in some contested states.

So rather than changing the election date, Congress should act to push back—just for this year—the date by which states have to finalize results and the date on which the electors meet. Pushing those back by two or three weeks could give contested states a lot more breathing room to deal with the actual challenges involved in mail-in voting while the election, certification, and inauguration would all go on as scheduled.

Making such a change would only requite a very simple tweak—a couple of sentences of legislative language. If it were done now, before anyone votes, it wouldn’t advantage one party over the other, so it might have a shot even in this polarized Congress. And if things don’t go smoothly on election day, it could make a big difference and help avoid a crisis of legitimacy. Some states would need to alter their own laws to make uses of the extra time, or to petition a state judge to extend the time for counting. But giving them the option would be a big help. If Congress is looking to avert an election mess, such a change would be much more constructive

But whatever lessons might be drawn from the problems the president gestures toward in his tweet, one more point must be made: The president is obviously not trying to be constructive. His tweet is a cynical, manipulative effort to undermine public confidence in the legitimacy of the coming election, as he has worked to undermine public confidence in all of our institutions since the moment he entered the race for the presidency five years ago. If he has concerns about election fraud, he should make his case at some length, offer evidence, and propose to congress some steps that might be taken to address his worries. But that his not his goal here. He is operating not as our president but as a kind of a tribune, channeling frustration and mistrust. It is bad enough to do this as an outsider in a time of alienation and cynicism. It is far worse to do this as President of the United States. It’s a failure of responsibility, and a travesty of leadership.

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.

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