Brian Maguire, Law & Public Policy Scholar, JD Anticipated May 2022
The outbreak of Covid-19 has reshaped life as we know it. It has changed the way we work, the way we learn, the way we socialize, and—during the 2020 election season—it changed the way we voted. While many of our norms have been adapted to weather the storm we know as coronavirus, it is unclear whether any of these changes will become permanent.
State and local jurisdictions all over the United States implemented temporary election procedures to accommodate public health considerations related to voting during the Covid-19 pandemic. In nine states plus Washington, D.C., every registered voter was automatically mailed a ballot ahead of the election. Another group of nine states mailed absentee ballot request applications to all registered voters. Twenty-five states allowed all voters to submit mail-in ballots, but placed the full burden of obtaining an application for an absentee ballot exclusively on the voter. Finally, seven states required prospective voters to state a reason other than Covid-19 in order to vote absentee. Notably, six of those seven states made no temporary changes to their election policies and procedures to accommodate for Covid-19. Those six states are Indiana, Texas, New York, Louisiana, Tennessee, and Mississippi. While South Carolina also required a non-Covid-19 related excuse, the state implemented other changes to ease absentee voting. Ultimately, a total of forty-three states allowed voters to cast an absentee ballot in the 2020 elections without a justification or as a result of the pandemic. These temporary voting procedures should become the new long-term voting norm in a post-pandemic world.
Nearly a century ago, Justice Brandeis articulated that “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Many have interpreted Brandeis’ remark to demonstrate that states can serve as laboratories of democracy. If states truly play that role in our system of government, then it is difficult to imagine we are not in the middle of a great voting experiment. As outlined above, the states implemented vastly different policies to accommodate for voting in the pandemic. If one method can prove to be the most successful, then perhaps that method should replace our pre-pandemic voting norms.
The debate over mail-in voting is centered around legitimacy and whether it is an effective way to build voter turnout while preventing or protecting against voter fraud. Certainly, any reforms to our voting procedures that would widely expand voting-by-mail would face a litany of challenges in court. To begin with, different political factions in the United States have different definitions of success with respect to reforms of our voting processes. For example, conservative groups have generally defined success as the effective prevention voter fraud, whereas for liberal groups, success means increased voter turnout. That is not to say that such concerns are per se partisan, but rather that ideological considerations inform how individuals tend to view the failures of our current system. It is therefore extremely significant that the nationwide adoption of a universal mail-in-voting process would satisfy both of those concerns.
A successful mail-in voting procedure can be expected to increase turnout, make voting easier, and ensure the legitimacy of our elections. Proponents of mail-in voting argue that there is no evidence to indicate that large-scale mail-in voting will lead to widespread election fraud. This has been affirmed by the FBI. Opponents of widespread mail-in voting—most notably President Trump—have, however, questioned the ability of that voting mechanism to yield legitimate election results. Given the President’s repeated attacks on mail-in voting, many in the United States may struggle to accept a permanent, universal mail-in voting strategy as legitimate. However, until mail-in voting’s strongest critics can point to empirical evidence indicating widespread fraud, permanent, universal mail in voting procedures should be considered as an efficient and effective means by which our government can ensure that anyone who wants to and is qualified to vote, can vote.
In the months after the election, data will be accessible to determine which vote-by-mail method proved to be most successful. Right now, we can only speculate. Nevertheless, first principles regarding the importance of ensuring that all U.S. citizens may exercise their right to vote suggests that the United States should adopt the method currently being utilized by Washington D.C. and nine states. As mentioned above, under this method states mailed every registered voter a ballot. This election procedure will prove to be the most successful because it will likely increase voter turnout, will allow voters to exercise the franchise safely and securely, and will be insulated from significant fraud that would impact results. Such conclusions are not unfounded. Existing evidence, albeit on a smaller scale, demonstrates that the universal mail-in voting method adopted by Washington D.C. and nine states already works. Utah implemented universal mail-in voting in 2012, and, according to Utah’s Lieutenant Governor, Spencer Cox, in 2018 90% of votes cast in Utah were done by mail. Utah’s universal mail-in voting process has been incredibly successful for nearly a decade. Lieutenant Governor Cox recently sat down with both NPR and The Atlantic to discuss the success of this process. According to Cox, the state mails every active, registered voter a ballot. Additionally, the Post Office provides the state with a list of changed addresses and deceased residents. After ballots are submitted, real people check the signatures on the ballots to ensure their accuracy. In the event that a ballot signature does not match the voter’s signature, the voter is contacted by their county officials, given the opportunity to cure the relevant signature issue, and resubmit their ballot.
Utah’s success did not happen overnight. When the system was first implemented in 2012, only a few municipalities participated, and counties had the opportunity to opt in. Over the next eight years, Utah continued to expand the system until it eventually became the statewide universal mail-in voting program. Obviously, state governments did not have eight years to develop a universal vote-by-mail system in response to Covid-19, but that does not mean adopting the system created by Utah in all fifty states should not be a long-term national goal. Because of Covid-19, more voters across the country voted by mail, and there is no reason to abandon this effort in a post-pandemic world. This is an excellent point from which to build upon as we stride toward Utah’s standard.
To be most effective, this permanent process will require state and federal collaboration. It is well known that elections are largely administered by states that further delegate powers to county governments. Therefore, whether the Utah method of universal mail-in voting is implemented nationwide will ultimately depend upon the decisions of all fifty state governments to amend their election laws in accordance with that approach. Nevertheless, the federal government can play an important role in coordinating and catalyzing this process, via its ability to incentivize states to adopt the Utah method, and support state governments through the transition. The federal government should engage in that effort, specifically by providing federal grant dollars to states deciding to opt-in to a nationwide universal vote-by-mail system. Those dollars can be spent on the costs associated with mail-in voting, including an increase in hiring of individuals tasked with counting ballots and affirming signatures. On the surface, it may appear that state participation in the program would depend upon the ideological orientation of states, with liberal states opting-in and conservative states opting-out. However, that result should not be expected, because there is no evidence to indicate that voting by mail favors one political party, and therefore neither conservatives nor liberals should be inherently opposed to universal mail-in voting. Additionally, most Americans support universal vote-by-mail efforts. While some level of partisanship can be expected, it is unlikely that it would prevent a significant amount of states from participating in an effort to adopt these measures as a long-term goal.
2020 has been a norm-altering year. On the other side of this pandemic, employees may find employers more willing to allow teleworking, students may discover universities offering more online learning opportunities, and voters should find their federal, state, and local governments making it easier to vote through the creation of a universal mail-in-ballot process in all future elections. Although implementation of this process will require patience, diligence, and collaboration, decisionmakers should find comfort in looking toward Utah’s success in implementing a universal mail-in-ballot procedure which increases turnout and ensures election legitimacy. If there is any silver-lining to the Covid-19 crisis, it is that our governments can build upon the universal mail-in voting procedures that the coronavirus has forced many jurisdictions to adopt.