Voting By Mail – Will We Have a Repeat of 2000?

By: - September 29, 2020

Suffice to say that recent polling indicates that most Trump supporters intend to vote in person while most Biden supporters intend to vote by mail. I am sure that you have heard about all the concerns and controversies around voting by mail. The reason why everyone, including President Trump, is concerned about voting by mail is that there have been recent issues reported in the media related to ballots mailed in by military service personnel that were discarded in Pennsylvania.

In addition, it took six weeks to call the New York democratic congressional primary, where longstanding Congresswoman Carolyn Maloney was finally declared the winner by the New York City Board of Elections. At issue in her primary was focusing on the postmarks of the ballots that were mailed in. A federal court judge allowed ballots that were received a day after the primary without a postmark and two days after the primary with a postmark of the primary day.

These issues around the postmarks and mail-ins will be an issue in the November 3rd presidential election.

Imagine what happened in Congresswoman Maloney’s primary occurring in potentially ten swing states. The thought of counting votes mailed in days after election day is dangerous. The fact that the 2020 presidential election will be determined by how effective, efficient and reliable the U.S. Postal Service is preposterous.

Unfortunately, this is a very confusing topic and the mainstream media is doing a great job adding to this confusion.

What makes matters worse is the fact that except for federal laws around provisional voting and voting for individuals in military service, state law is generally controlling. Election day is mandated by law for the general elections of the president, vice president, and congress which is required to be held on the Tuesday after the first Monday in November for even-numbered years. This means that election day in 2020 cannot be rescheduled or moved to some arbitrary date but must be held on Tuesday, November 3rd. I am pointing this out because voting in person in many states has been called into question because of the state mandated COVID-19 lockdown orders.

States do have the discretion to move primary dates and many states have moved primaries in 2020 due to the concerns around voting in person and COVID-19. As a matter of fact, New York Governor Andrew Cuomo moved the New York presidential primary and special elections to June 23rd from April 28th. The June 23rd date was already established as the date to vote in primaries for Congress and state office. In addition, voting by mail was expanded for June 23rd voting due to concerns around the transmission of COVID-19 and the state-ordered lockdowns. The concern was that voting in person could lead to the further spread of COVID-19. Many states have also permitted early voting in person and by mail.

Generally, there are three types of voting my mail: absentee ballot, mail-in ballot and provisional ballot. The purpose of a provisional ballot is to make sure that voters are not excluded from the voting process due to potential administrative errors such as the voter’s name not being on the registration list, the voter’s address or name has changed but the voter registration information doesn’t reflect the change, or the voter requested an absentee ballot but claims that he or she didn’t receive it or submit it.

The most basic form of voting my mail is through the absentee ballot. All states have absentee ballot laws whereby the voter completes an application to receive an absentee ballot from that state board of elections. Some states require excuses for why the voter is requesting an absentee ballot while other states do not. Aside from the excuse/no excuse, absentee ballot applications usually ask the voter to sign an application whereby the voter certifies that they are “a qualified and a registered voter and that the information in the application is true and correct and that this application will be accepted for all purposes as the equivalent of an affidavit and if it contains a material false statement, shall subject the applicant to the same penalties as if the applicant had been duly sworn.”

Nonetheless, requesting an absentee ballot via an application is an important voting control feature and establishes a chain of custody. The voter is not only contacting the state board of elections requesting an absentee ballot but also at the same time certifying that they are a qualified and registered voter. There is also the voter’s signature on the absentee ballot application. These are important features as the state board of elections can track the mailing of the ballot from the application that was certified by the voter.

On the other hand, many states directly mail ballots to registered voters. This is much riskier in terms of potential fraud because the control feature of the voter initiating the contact with the state board of elections does not exist. Many time voters move and do not update their address with the state board of elections. What happens if a mail-in ballot is sent to a voter who was registered with the state board of elections and that voter moves. There is the possibility that one could submit a mail-in ballot that was intended for someone else. This could lead to the possibility that a voter could potentially vote more than once. Clearly, this all boils down to what controls are in place around mail-in voting.

Focusing on how voters will receive the mail-in ballot is only half of the picture. Once received, how will the voters get their mail-in ballots to the respective board of elections in their city or state? Obviously, voters can mail-in their ballot, but some states do not provide prepaid postage and if voters mail in ballots with no postage their ballots will be returned to sender. Some states allow voters to drop off their ballots in secure drop boxes while others even allow representatives or agents to drop off ballots on behalf of others.

Mail-in voting puts a tremendous amount of pressure on the various state boards of elections including determining if the ballot was mailed in timely, whether the ballot was signed appropriately and whether the voter signature matches up to the voter registry. There are even more basic verifications needed regarding whether that voter is a qualified and registered voter. Even more fundamental is preventing voters from voting by mail and in person. This all adds to the strain on the various state boards of elections to root out voter fraud.

Although I have tremendous respect for our courts, I am concerned that voters could  be disenfranchised because their votes will not count or on the other hand, votes that clearly should not be counted will be, as ordered by federal judges. Elections are supposed to be decided by the voters and not the courts, but in 2020 it appears that the U.S. Supreme Court, as they did in the 2000 election, might make this ultimate determination.