As we head into the late state and congressional primaries and get ready for the general election, we are faced with a recurring issue aggravated by COVID-19. We have a very decentralized election infrastructure in this country. There are certain benefits to the decentralized nature of elections in the United States, but there are also several big problems.
The benefits of a decentralized infrastructure is that it is very, very difficult to engage in election fraud large enough to make a difference in any election other than, maybe, the local mayor’s race in a small town. In my state, there are over 100 election authorities and 3,600 precincts. So you can possibly devise a scheme to stuff the ballot box in a handful of precincts or handful of counties (especially if the election judges nominally representing one party actually belong to the other party). But you really need a close election for that to make a difference and you really need to add a lot of votes in those small number of precincts (enough to probably stand out). The disadvantage is that it is hard to get everyone to follow best practices, especially as many local election authorities have other duties and are elected based on something other than their ability to properly conduct an election.
When it comes to elections, there are several big decisions committed to the discretion of the local election authority. First, election authorities get to choose how many precincts there are (and where those precincts are located). In theory, there are multiple factors that the election authority should consider — availability of buildings, local traffic patterns, parking in the vicinity, public transportation, the number of voters in particular precincts. But most states give little guidance as far as maximum size of precincts.
Second, election authorities get to pick the election judges and choose which precinct they are assigned to. While my state requires a minimum of four judges per precincts (no maximum) and that the judges be balanced between the two parties (with at least two from each party with the remainder potentially including independents), my state also does not register voters by party. As a result, in some places, it is debatable whether all of the Democrats working as judges are actually Democrats and all of the Republicans are actually Republicans. The lack of a maximum number of judges can offset the decision to have a larger precinct. For example, I live in the largest precinct in my county (over 3,000 registered voters but with typically slightly lower numbers actually voting). By have multiple teams of judges (each team has two judges) and dividing the precinct alphabetically between the teams, you have effectively created multiple precincts in one polling place (as long as there is enough parking space for the heavy voting time) and reduced the amount of delay. Likewise, election authorities get to choose the teams who do the review and counting of absentee ballots which can speed up or delay that process.
Third, again with some state-imposed limits,
Third, ultimately standards have to be applied by human beings. And these standards matter when it comes to rejecting or accepting provisional or absentee votes. While the state can define what the election authority should be looking at in reviewing absentee and provisional ballots, things like whether signatures match is a judgment call. Further, the election authority can either go the extra mile in helping voters who go to the wrong precinct (having staff present to handle those questions) or can make voters contact a central office and figure out where to go for themselves.
Fourth, election authorities — within limits imposed by their state — get to choose their voting machines and which venders print the ballots and program the counting machines. So, it is hard to get every election authority to switch to better machines and to get rid of old problem machines, especially given other competing demands on local budgets.
Now how does this fit into COVID-19. COVID-19 has a potential to throw a monkey wrench into elections in two ways as we have seen so far.
At the most basic level, voters have to decide how safe their precinct is. Election authorities can take steps to reduce the risks to voters by imposing social distancing rules at their precincts. And if the precinct has enough space and few enough voters, voting can be no more risky than going to the supermarket. (In my county, even in my precinct, I think that we have probably taken enough steps that, if you can choose your own time to vote, you can probably vote safely.) But not every precinct in every county has the ability to do social distancing.
At the same time election judges have to choose how safe it is. As we saw in Wisconsin, if election judges start opting out for health reasons, election authorities will probably have to reduce the number of precincts making it harder and less safe to vote in-person on election day. And, in most of this country (especially for the general election), elections are held on weekdays. And, most important, election day is not a holiday. That means that elections workers have to take the day off from work. As there are typically, several elections per year and election authorities prefer dependable judges who can work all of the elections that means that most election judges tend to be retirees. And in the era of COVID-19, retirees tend to be a high risk group. In short, the failure of state to make election day a holiday (and require election authorities to hold trainings outside normal working hours) means that most election judges are exactly the people who should not be spending thirteen hours interacting with potentially infected individuals.
Finally, it is back to those standards for judging which absentee ballots are acceptable. In many states, election authorities do not get to even look at mail-in absentee ballots (beyond recording their receipt) until election day. In some states, a high number of absentee ballots are rejected. And there is no requirement that election authorities contact a voter to let them know that their absentee ballot is being rejected or give them an opportunity to cure the reason for rejection. (Even worse, the standard may not be consistently applied across jurisdictions. An election authority in a small county with few absentee ballots might go the extra mile to help voters fix problems with their absentee ballots. An election authority in a large county, however, may lack the resources to deal with thousands of potentially invalid ballots. In the absence of a law requiring them to make the effort, staff may focus on other concerns.) And if you can’t trust your election authority to process your absentee ballot properly, you may feel that you have no choice but to try to vote in-person or just skip the election.
And this feeds into the final issue for this year’s election. While some states usually have a decent number of absentee (i.e. mail-in) ballots, other states have few ballots mailed-in with almost all voters casting in -person ballots (whether on election day or in early voting). If health concerns cause an uptick in absentee ballots, it is less than clear that most election authorities are ready to respond. We have already had complaints that some election authorities simply could not process all ballot applications quickly enough and get ballots mailed to voters in enough time for voters to mail their ballots back. And we have seen election authorities struggle to count the ballots after the election. They simply did not have enough judges available to process the ballots quickly or machines designed to quickly count that many ballots. And, if election authorities take longer than usual to count ballots and close states start swinging back and forth in the days after the election, the agents of chaos and authoritarianism will start making reckless and unsupported allegations challenging the accuracy of the count.
This election is one in which turnout may decide several key races. While I am currently optimistic about Joe Biden, I can easily see control of the Senate, several governorships, and several state houses coming down to 1 or 2% of the vote. And there is enough problems that people have with voting. COVID-19 and a series of rules designed to make it hard to vote by mail in some states could make the difference. It would be nice if every state would change their laws to account for this year’s problem, but many reddish states will not. Even if they change their minds, time is running out to get things in place for November.
