One of the answers has got to be that you have a variety of mechanisms for voting. So you have expanded vote-by-mail for people afraid to vote in public. But what if the mail system collapses? You know, the postal service not being funded, the pandemic spreading throughout the postal system, and mail becoming unreliable — there’s all kinds of things that could happen. So we need to have in-person voting, and that needs to be safe, or as safe as possible.
The other thing I’m worried about — and this is a very specific scenario — is that even before coronavirus, Michigan and Pennsylvania, two very key swing states, announced that they were moving to no-excuse absentee balloting — which, I think, is a great thing. People should be able to have their choice of how to vote so long as it can be done securely. And I was already worried that places like Detroit and Philadelphia are going to be overwhelmed with absentee ballots. Now, it’s going to be many times magnified, as we saw in Wisconsin.
It’s possible that there’ll be partial returns released on election night. You can imagine it’s the cities that are slowest in the count, as usual. Trump declares victory and says that voter fraud is endemic in absentee ballots — especially from cities like Philadelphia, which he’s claimed is full of voter fraud in the past. And then, five days later, Biden is declared the winner. And the election turns on this. You have two competing candidates claiming victory, potentially two competing slates of electors sent to the Electoral College, and just a huge mess. So that’s one of my nightmare scenarios. One of the ways we need to deal with that is that the media has a very important role in educating the public about election delays not meaning that something nefarious is going on, but [instead] that a count is being done carefully. Like a fine wine, good election results take time; you have to be patient. And the American people are not going to be patient about the results of November’s election.
Stanton: We’re less than 200 days out from the general election. In a normal cycle, what is going on at this point in terms of preparing for administering an election — and how is that different with coronavirus?
Hasen: Normally, polling places would be secured. Orders for printing ballots would be put in. Machines need to be procured; it’s a little too early to program them. It’s a little early to start hiring for poll workers. But all of the activity that takes place before the election would happen, except in those states that are still going to run primaries.
Preparations need to happen right now. If you’re expecting five times the number of absentee-ballot applications — like Wisconsin saw — you’re going to need to have a printer set up for that, and you’re gonna need to have a procedure set up to mail those ballots out. And if people have to apply for absentee ballots individually, those are all going to have to be processed. Lots needs to happen now that wouldn’t ordinarily have to happen quite so early.
All of our models about how many people will vote in person or vote by mail, we’ve got to throw out the window in the context of the pandemic. And I think the prudent thing to do now is to expect that there’s going to be a surge of vote-by-mail in every state, and to prepare for that.
Stanton: Are there any states that you see as a sort of model for how to hold an election during a pandemic?
Hasen: Ohio is an example where they seem to be proactively working to make sure voters have easy access to vote-by-mail if they want it. And although I didn’t like the way in which Ohio postponed its [primary] election, I thought it was the right thing. And that gave more time for people to be able to apply to vote by mail and to be able to register to vote.
The other thing we haven’t touched on, but which is so important right now, is that normally, as the general election period takes off, there would be heavy voter-registration efforts — a lot of it in-person, [where you] go to the park and get people to fill out registration forms. I think there are 10 states that don’t allow online voter registration, that require you to go somewhere in-person to register. And with government offices closed, I think there are going to be a lot of people who are not going to be able to vote in November because they’re not going to be registered in time.
One of the hottest issues now in litigation, which was not on the radar until about two months ago, is that in the one-third of states which require an excuse to be able to vote by mail, what counts as a valid excuse? Some states have said that if you’re worried about getting the coronavirus and you don’t want to be out in public, that’s a good enough excuse. Others, like Texas, are fighting that. Their attorney general is threatening criminal prosecution against people who would claim fear of the coronavirus as a reason to want to vote by mail. So that’s being litigated now. I actually think litigation is a good thing now, because it’s better to have clarity about what the rules are well in advance.
Stanton: Vote-by-mail is pretty familiar to most people, but also seems newly partisan in an odd way. But my understanding is that the origins of absentee voting, or at least where it became widespread, was with the Republican Party in California.
Hasen: I mean, absentee voting goes back to the Civil War as a way of giving soldiers a chance to be able to vote. But you’re right that California was one of the places that pioneered vote-by-mail, and California Republicans were much faster in advocating for it than Democrats. Now, putting [the] Wisconsin [primary] aside, which I think was an unusual race because of the pandemic and the Republican legislature’s response to it, there’s no good evidence that vote-by-mail favors Democrats over Republicans. It is true that Democrats have, in recent years, caught up with Republicans, but in many states, like Florida and California, Republicans have a long history of using vote-by-mail as a way of getting out the vote.
Stanton: But there are concerns about fraud and “ballot harvesting” with absentee votes. On what scale does that happen? How widespread is it?
Hasen: Election fraud in the United States in modern times is very rare. When it does happen, it tends to happen more with absentee ballots than with other forms of voting. There’s a very good database of all election prosecutions that researchers could track from 2000 to 2012. And 24 percent of the cases involved absentee-ballot fraud in one form or another — sometimes it had nothing to do with actual voting. But that 24 percent of cases made up only 491 prosecutions nationwide during a period when billions of ballots were cast; the rate of absentee-ballot crime appears quite low as an absolute matter. In fact, the five states that use mostly mail-in balloting for their elections have not seen significant cases of crime. Now, of course, the calculation is different [because of coronavirus]: The benefits of voting by mail are greatly increased because now it’s not just the convenience, it’s the safety that comes from not having to interact with as many people when you’re voting in person.
Stanton: President Trump recently attacked voting by mail, calling it “ripe for fraud.” The ability to believe in the sanctity of an election and the accuracy of its outcome is pretty central to a functioning democracy. Are you concerned at all that the cat is out of the bag a little bit — that distrust is sown about mail-in ballots, and there’s not necessarily an easy way to come back from that?
Hasen: I’ve always been concerned that [Trump] would claim that fraud was the reason he might lose an election. And I still think that might happen, should he lose — which brings up the Election Administrators’ Prayer: “Lord, let this not be close.” If you have a real blowout, it’s hard to claim that fraud is the result.
How do we ensure that elections are not only conducted fairly, but that people have confidence in them, when recent public opinion polling shows up to 40 percent of the public is not convinced that elections are conducted fairly? I think there’s a role to play for elected leaders, social media companies, traditional media companies, lawyers, members of Congress, state and local election officials — there are steps that all can take to try to minimize the chances of a meltdown. And that’s really where we have to focus our efforts, especially now in this Covid-19 era.