This year’s primary elections saw millions more Americans turn to absentee voting, better known as mail-in voting, as the coronavirus surged in the United States. Disasters in the form of hour-long waits to vote, undelivered absentee ballots, and ballot rejections led to a debate about mail-in voting. The debate involves questions such as who should be allowed to vote by mail, how easy it should be, and how it will affect tabulating the results for an already unconventionally complicated election. Mail-in voting, however, is not the only change that will differentiate the upcoming election from 2016; several states have made monumental changes in policies regarding felon enfranchisement and gerrymandering. Furthermore, the Supreme Court recently made an important decision regarding the electoral college by allowing states to impose certain restrictions on an elector's vote. Many of these changes will limit the ability of the American people to vote this November.
Even before the pandemic, voting by mail was becoming more popular. It had already grown popular with out-of-state college students, those physically incapable of voting in person, and those with work or other obligations on a Tuesday.
However, mail-in voting has inconsistencies and flaws that have led some to worry about its efficacy. Many states require an excuse to vote by mail. To receive an absentee ballot, voters in these states need to apply by filling out a form that asks for the specific reason that the voter would like to vote early, such as being temporarily out of state—like a college student—or having a temporary illness or disability. These excuse standards now vary heavily by state. Pennsylvania, for example, recently abandoned the excuse requirement with a new law. In Tennessee, a judge ruled that any eligible voter concerned about contracting the virus while voting could cast a mail-in ballot this election, although state law typically requires an excuse. Other states, such as Massachusetts and Missouri, have also chosen to abandon the requirement for the rest of the year. In Texas, however, voters are required to prove that they will be unable to vote, and the Supreme Court decided that it would not require Texas to allow all eligible voters to vote by mail.
Another issue regarding mail-in voting is mismatching, which occurs when someone makes a small mistake filling out their ballots or their applications, like a typo. One type of mismatch is signature mismatch. Before sending in an absentee ballot, voters need to sign it. To prevent fraud, election boards have a copy of each voter's signature on file to compare with incoming ballots. A mismatched signature can cause a ballot to be invalidated, and rules addressing these mismatches also vary by state. Some states, like Colorado and Illinois, allow voters to "cure" a signature mismatch within a certain number of days.
These issues have always existed, but the possibility of country-wide mail-in voting has led to debate about its efficacy. Those against allowing the population at large to vote by mail are concerned it would enable voter fraud, although proponents of mail-in voting point out that there are systems in place to counteract fraud, such as identity verification, signature matching, bar codes, and post-election audits. There is also a concern that voting by mail would delay the release of election results, but proponents argue this would encourage voters in the western United States to vote, since media outlets begin discussing the results before the polls close on the West Coast. A survey showed that 67 percent of Americans support having a mail-in option this November. However, there are huge differences across party lines: 82 percent of Democratic voters and 61 of Independent voters support the option, while only 31 percent of Republican voters support it. Some Republicans have cited concerns over states' rights. A few members of the GOP have said they do not want to push mail-in voting on the states, since voting is technically under the jurisdiction of the states and not the federal government.
Other arguments turn to what might happen on Election Day. Those who support mail-in voting say that it may not be practical to vote in person, given that there will likely be fewer poll workers and polling locations. During the primaries, this led voters to wait hours to vote. Those against mail-in voting see the primaries as a cautionary tale due to problems concerning ballot rejections and undelivered ballots. Given the unprecedented circumstances, states were not prepared to handle mail-in voting on a large scale.
Due to the virus, there was a shortage in poll workers, which led states to consolidate polling locations. People had to travel farther and wait longer (often for many hours) in order to vote in person. Wisconsin's public health department estimates that at least fifty-two people tested positive for the virus after voting in person or working at a polling location for the April 7 primary.
New York had a problem with ballot rejections. One in five ballots were rejected without even opening the envelope due to missing or late postmarks, or missing signatures. In comparison, Wisconsin had a 1.8 percent rejection rate, while Georgia had a 3 percent rejection rate. New York was highly ill-equipped to handle a primarily mail-in election, having received more than seventeen times the number of mail-in ballots they received for the 2016 primary. Washington, D.C. faced a similar problem, having received fifteen times as many absentee ballot applications they normally received; as a result, many DC voters never even received their ballots. Maryland decided to send out ballots to all voters, but problems arose because some voters had moved and not updated their addresses, and many ballots were mailed out late. In Baltimore alone, twenty thousand people lost out on their right to vote because their ballots went undelivered. In Wisconsin, one of the states in which this occurred, the Supreme Court ruled that absentee ballots could be counted as long as they were postmarked by the date of the election and received within a week.
States must address all these problems for the November election. Several states have already set up universal mail-in procedures. Wisconsin is working on adding barcodes to their ballots so that voters can track their ballots to make sure they are counted. Several states are also planning to mail out absentee ballot applications to all eligible voters.
Mail-in voting’s flaws are not the only problem facing this election; there are still the more traditional forms of voter suppression, such as gerrymandering and felon disenfranchisement. Some states have taken steps between 2016 and 2020 to account for these problems.
During the midterm elections, five states—Utah, Ohio, Michigan, Missouri, and Colorado—voted to reform their redistricting processes. Often, redistricting is left to the state legislature, so the majority party draws the map to best benefit their party. These states are taking steps to make redistricting fairer and more transparent by implementing limits on partisan gerrymandering. The following year, New Hampshire also moved forward with redistricting reform, having approved an act that would create strong map-drawing rules and ban partisan gerrymandering. Virginia and Arkansas have both been working on constitutional amendments to reform the redistricting process, but neither amendment will pass before the 2020 election. Furthermore, Maryland and Pennsylvania will be redrawing their districts for the 2020 election.
It is unclear how Maryland and Pennsylvania’s changes will affect the election results, especially since many other states are still gerrymandered and will continue to be so for this November. Maryland typically leans Democratic in presidential elections. However, Pennsylvania is a swing state, and could be enough to turn the tide of the election.
In several states, felons cannot vote, even former felons who have served their time in jail and been released. Some states have reinstated the right to vote: most notably in Florida in 2018, which re-enfranchised 1.4 million people. Florida is an important swing state, and those 1.4 million votes could make all the difference. Earlier that year, Louisiana also reinstated that right, adopting a law to restore the right to vote to those on probation or parole who were not incarcerated within five years of Election Day. Since the law did not officially go into effect until 2019, this will be the first major election where they get to vote.
These potential voters are disproportionately African American. African Americans typically vote Democratic, and Florida and Louisiana went Republican last election. However, there are still many barriers to voting—including voter roll purging and voter ID laws—so it is unclear how many of them will actually vote, and what type of impact they will have.
A New Electoral College Rule
Recent Supreme Court rulings have also constrained the Electoral College to vote in line with their states’ popular vote. In the presidential election, the popular vote does not directly elect the president. Instead, it elects electors to the Electoral College, who each cast a vote for president. Each state gets the same amount of electors as they do House representatives and senators in Congress, so every state has at least three electors. Washington, D.C. also gets three electors. The original purpose of the Electoral College was to prevent the election of a demagogue, since the Founding Fathers did not trust the people. Thus, electors were supposed to place their votes for the candidate they felt was most qualified to govern, regardless of who the people wanted. In modern elections, however, electors typically vote for the candidate who wins the most popular votes in their state. Many states also have winner-take-all systems where the candidate who wins most of a state's popular votes gets all of its electoral votes. In the last election, several electors went against that norm and voted for candidates other than the one that won their respective states. They are known as faithless electors.
This summer, the Supreme Court passed down rulings for two cases regarding faithless electors in the 2016 election, Chiafalo et al v Washington and Colorado Department of State v Baca. Chiafalo focuses on specific faithless electors in Washington, while Baca is about the faithless electors in Colorado. Both came to the same conclusion that states could impose penalties, such as a fine, against faithless electors.
The Supreme Court's arguments focused heavily on Article II and the Tenth and Twelfth Amendments. Article II outlines the instructions for electing a president, directing states to appoint electors. The Tenth Amendment, which was favored mostly by Justices Clarence Thomas and Neil Gorsuch in their arguments, says that all rights not explicitly given to the federal government are left to the states' discretion. The Twelfth Amendment explains the voting procedure: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President . . .; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to [Congress, where] the votes shall then be counted.”
Nothing in the Constitution explicitly prohibits states from revoking electors' voting discretion. Article II gives the states discretion in choosing presidential electors "in such Manner as the Legislature thereof may direct." Thus, with the power to appoint an elector comes the power to impose a condition to their appointment, such as a pledge to vote for the winner of the state popular vote. The Twelfth Amendment does not say anything about who the electors must vote for, so neither Article II nor the Twelfth Amendment gives electors rights over who they vote for. There is also precedent to consider; in Ray v. Blair, the Court ruled that states could compel electors to pledge their votes in advance for the winner.
In the short term, this decision will not have much effect, since it mainly reinforces the status quo of the Electoral College. At any rate, it is inconceivable that enough electors would have voted against the candidate they were pledged to. However, in states that still allow for faithless electors, it can be expected that each political party will be careful in vetting their electors to prevent another faithless elector scenario.
In the long term, however, these decisions reinforce the validity of the National Popular Vote Interstate Compact, an agreement amongst states to devote their electoral votes to the winner of the national popular vote rather than the state’s popular vote. After all, if states can compel electors to vote for the winner of the statewide popular vote, they would also be able to compel electors to vote for the winner of the national popular vote. The pact, as it stands, includes fifteen states and the District of Columbia, worth a total of 196 electoral votes. Jason Harrow, a lawyer who delivered the oral argument in Baca, speculated that the compact could end up at the Supreme Court. The compact needs the typical 270 votes to take effect; however, in order to reach 270, it needs four or five tough-to-get states.
Tips For Voters
This election, voters will face old obstacles as well as new ones in order to exercise their civic duty. It's important to check your registration as soon as possible in preparation for this momentous occasion. If you are planning on voting in person, make sure to follow the recommended guidelines in order to stay safe. If you are planning on voting by mail, you should apply for your absentee ballot as soon as possible. Be sure to research state policies to understand when exactly your ballot needs to reach the Board of Elections in order to be counted. If you can, drop off your ballot in person; if not, make sure to mail it back as soon as possible.
This image used in this article was taken by Tim Evanson. No changes were made to the original image, which is licensed for reuse under the Creative Commons Attribution-Share Alike 2.0 Generic License. The original image can be found here.