Universal mail-in voting jeopardizes the equal right to vote, but absentee voting protects it
With less than two months to Nov. 3, officials planning to mail live ballots to every voter are running out of time to heed the lessons of the election dispute I survived two decades ago: States must treat every eligible vote the same. But state universal mail-in procedures and shifting ballot count deadlines jeopardize the equal right to vote. Universal mail-in voting risks both the dilution of legitimate votes and the disenfranchisement of eligible voters — equal protection problems eliminated by common-sense absentee voting procedures.
In Bush v. Gore, the Supreme Court held “the equal dignity owed to each voter” precludes state laws that “value one person’s vote over that of another,” whether through the “dilution of the weight of a citizen’s vote” or “wholly prohibiting the free exercise of the franchise.” But “the absence of specific standards” meant Al Gore’s county-specific recounts in Florida in 2000 violated equal protection guarantees.
States that plan to indiscriminately mail live ballots to voters who have not requested them will crash into the same constitutional brick wall as Gore’s Florida recounts.
Americans move between elections — normally about 10 percent each year. That percentage is even higher in 2020. Millions of people moved to escape coronavirus. Moving in a pandemic is complicated enough. It is reasonable to expect many voters did not remember to tell their new address to the local Board of Elections. It is unclear how migration — by potentially one-fifth of Americans, according to the Pew Research Center — will affect the election. Haphazardly lobbing a ballot to everyone on the voter rolls under these circumstances may disenfranchise many thousands of people who no longer live where they registered.
Whoever gets long-gone voters’ mis-mailed ballots might never return them — or worse, might cast them as fraudulent votes. Look no further than the elections in Paterson, N.J., the 9th Congressional District race in North Carolina, or the one-in-five mail-in ballots rejected in the New York primaries to see these risks are real.
Indiscriminate mail-in voting presents another equal protection problem: when do ballots have to be received to be counted? Under most states’ laws, all ballots must be in official hands by the time polls close on election day, whether those ballots were cast in person or absentee. But states like Pennsylvania and Nevada are in court over attempts to change the deadline to allow ballots received after election day to be counted. A federal district court even ordered Georgia to plan on counting absentee ballots received by Nov. 6 — though the state intends to appeal.
These changes all but guarantee Americans will not know the results of the election quickly. Worse, these changes present a clear equal protection problem: One class of voters may have the privilege of more time to vote than everybody else.
Instead of states’ dangerous experiment in hard-to-track mail-in ballots, states should only send active registered voters absentee ballot applications, rather than mail-in ballots. Such applications ensure trained election workers can match the address and a fresh signature on both the application and the ballot to each voters’ registration file. These absentee ballot applications should come directly from election officials, not third parties. Indeed, more than 500,000 Virginia voters were mailed erroneous ballot applications by a third party group. States should also consider requiring a photocopy of valid state ID with absentee ballots.
If states wish to allow voters to drop off ballots themselves in lieu of returning ballots by mail, all drop off locations must follow the same, specific statewide standards for security and ballot collection — rather than allowing local officials to use unmonitored drop boxes. Election officials should also preserve widespread, accessible, CDC-compliant in-person voting options to avoid the quagmire of Wisconsin’s April elections, where hundreds of polling locations were closed due to poll worker shortages.
States should start counting absentee ballots before election day to avoid concerns about election night confusion and weeks of litigation. For example, in keeping with its authority to regulate federal election procedures entrusted to it not by the state constitution, but by Article I, Section 4 of the U.S. Constitution, the Pennsylvania House recently passed legislation allowing officials to start counting absentee ballots days before the election. This fix could have helped prevent Pennsylvania’s long delayed June primary results, but the Democratic governor has suspiciously promised to veto the bill while seeking to usurp greater and potentially unconstitutional control over the process. Finally, voters who plan to vote absentee should take personal responsibility and apply for and return their ballots quickly.
Safeguarding the equal right to vote protects our Republic’s 244-year experiment in self-government. A valid ballot is the live ammunition of the consent of the governed. We cannot compromise its integrity. As the engineer of the winning trial strategy adopted by the Supreme Court in Bush v. Gore, my advice to both Democrats and Republicans is the same: Put clear, specific rules in place before election day to ensure every valid vote is treated equally. Otherwise, the unelected judiciary or a fractured Congress may resolve who holds the White House.
C. Boyden Gray was counsel to Vice President George H.W. Bush, 1981-1989, and President Bush’s White House counsel, 1989-1993. He was U.S. ambassador to the European Union and a special envoy for European and Eurasia affairs during the George W. Bush administration. He is now in private law practice in Washington.
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