Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Wednesday, March 12
The Problems with All-Mail Elections
With the Clinton and Obama camps at odds over whether to seat Florida and Michigan delegates, the idea of holding an all-mail election has emerged as a possible solution. The New York Times reports today that Democratic Party officials are "close to completing a draft plan" for a mail-in primary in Florida that would take place in early June. Proponents of all-mail voting often cite Oregon's experience in support of their arguments. If they can do it, the argument goes, why can't we?
Given that Democratic Party rules set clear standards for having delegates recognized, which Florida and Michigan just as clearly failed to abide by, it seems obvious that the delegates selected through those states' prior primaries shouldn't be recognized. At the same time, there are reasons to be very cautious about exporting all-mail elections to these states, especially in a hotly contested and undeniably important race like this one. Here are a few of those reasons:
- Lack of experience. All-mail elections would be new to Florida. It's certainly true that some voters in Florida and other states already vote by mail, in the form of absentee ballots. But having everyone vote by mail is a major change that raises a different set of issues. In Oregon, the transition to all-mail elections was made gradually, over two decades as summarized in this timeline. Trying to implement all-mail voting on an extremely accelerated schedule would invite trouble. This is particularly true for a state like Florida, to put it mildly, doesn't exactly have a trouble-free history of election administration. With so much at stake, this isn't a great time to experiment.
- Security. The likelihood of fraud and other forms of electoral manipulation is frequently exaggerated. But to the extent foul play happens, it's most likely to occur with mail-in ballots. That's partly because the anonymity of the ballot is compromised, allowing people to buy and sell their votes in a way that's not possible with in-precinct voting, as Rick Hasen has pointed out. It's also because lots of things that can happen to a ballot between the time it's goes from election authorities to the voter and back again. Suppose some election insider has a list of "deadwood" on the rolls (i.e., people who've died or moved yet remain on the rolls) and is able to intercept those ballots before they get into the mail? Or suppose someone has a connection at the post office? This isn't to argue that these things often happen -- there's not much evidence of such fraud in Oregon, according to this report by Paul Gronke. But again, Oregon's got a long history of dealing with the problems with mail voting, and not much history of corruption. By contrast, there has been fraud with mail ballots in Florida, specifically in a Miami mayoral election in which absentee ballots were found at the home of a local political boss, as noted by Prof. Gronke (at p. 2).
- Voter mistakes. As we learned in Florida eight years ago, voters make lots of mistakes. Fortunately, the current generation of voting technology can reduce those mistakes, as I've discussed at length in this article. That includes not only electronic touchscreen voting systems, but also paper-based "notice" systems that are used at Florida's precincts. With such "notice" systems, commonly known as precinct-count optical scan, voters run their paper ballots through scanners at each polling place. Those scanners provide voters with notice and the opportunity to erroneous "overvotes" (making more choices than allowed). Such mistakes are more common than you might think, as documented in the media consortium study of ballots in Florida's 2000 election. That study found more than 40 overvotes per 1000 ballots with optical-scan paper ballots. The use of precinct-based notice technology reduced the number of errors to less than 3 per 1000. People voting by mail, of course, don't have access to notice technology and can thus be expected to cast more ballots that won't be counted. And this isn't even taking into consideration the other mistakes than can occur, like sending in the ballot late, failing to include adequate postage, not including adequate identifying information, or not signing in the right place. See this study by Mike Alvarez, Thad Hall, and Betsy Sinclair on the errors that voters make when voting by mail
- Skewing the electorate. To my mind, the most serious risk of all-mail elections is that it will distort participation to the disadvantage of certain demographic groups. Those who are most familiar with voting by mail are likely to have the highest levels of participation; others can be expected to have more trouble and thus lower levels of participation. This includes not only people who have moved or who are homeless, but also those who are illiterate or marginally literate, and therefore may have difficulty following written instructions on mail ballots. At the polling place, such people can of course rely on poll workers' assistance -- not so when they vote by mail.
Empirical research for Oregon provides some support for this concern. It's true that some studies have found a modest increase in overall turnout in Oregon, after many years of experience. But even in Oregon, that increase tends to occur disproportionately among those already most likely to participate, including those who are better educated and more affluent. As one researcher has put it, mail voting can have "perverse consequences" because it tends to "reinforce the demographic compositional bias of the electorate and may even heighten that bias." The end result could be an electorate that's even less representative of the general public than the existing one -- older, richer, and whiter.
Even if one believes that all-mail voting works well in a smaller and relatively homogeneous state like Oregon, there's reason to be very cautious about exporting it to larger, more heterogeneous states. These concerns are especially acute in states such as Florida and Michigan, parts of which are covered by Section 5 of the Voting Rights Act. That means that any change to their election rules -- including an all-mail primary election -- would have to be precleared by the U.S. Department of Justice or the U.S. District Court in Washington, D.C. If the use of all-mail voting would have a retrogressive effect, making racial minorities worse off than they were before, then the change couldn't be made.
There's a reasonable argument that preclearance should be denied, on the ground that an all-mail election will have a negative impact on the participation of minority voters. But even if preclearance is granted, mail voting could still have a disproportionate impact on participation by some groups of voters. And that, of course, would cloud the legitimacy of Florida's election -- and perhaps the selection of our next President. As Yogi Berra (or John Fogerty) might put it, it's like deja vu all over again. If there's going to be a re-vote in Florida, it should be conducted at precincts rather than by mail.