Part Eight: ELECTION LAW — Mail In Ballot Elections

Mail In Ballot Elections is a “bonus” entry in a series on election law — in light of what is, no doubt, one of the oddest elections in over 100 years, particularly when it comes to the Presidential election. Today we discuss big picture, 10,000 foot view, of concepts and arguments made by both sides post-election. Mail in ballot elections. Part eight, with this and other posts raising issues worth considering for the Presidential election.

Federalism

We begin with boring. As explained in prior posts, the Constitution of the United States, as the supreme law of the land, was drafted with a balance between State and Federal rights.

In a crude summary, the States cannot take away (diminish) your federal rights, with the States having the ability — and in many ways the obligation — to establish the substance and procedure by which you, as a citizen, are governed.

This also means that federal courts have guiding principals of how and when the courts can act on state-right issues.

The legal words are things such as “jurisdiction” or “standing” or “abstention”.

From a Joe-public perspective, it really means that as long as the States don’t take away or impinge upon your federal rights, what happens in the States stays in the States.

This balance includes the right to vote.

To be sure, the right to vote is federal law. The Fourteenth Amendment “protects the right of all qualified citizens to vote, in state as well as federal elections.” Reynolds v. Sims, 377 U.S. 533, 554 (1964). The right of women to vote was ratified under the Nineteenth Amendment.

The states cannot take away the right to vote.

The Right To Vote

But the states can draw certain lines (think of it as procedures) on the right to vote.

These lines were at issue 20 years ago in the Bush v. Gore, 531 U.S. 98 (2000). There, in addressing the counting of votes (remember hanging chads?), the Supreme Court reasoned that the Fourteenth Amendment protects the initial allocation of the franchise and the manner of its exercise.

Indeed, as in that case, any state-drawn lines are subject to federal law, including the equal protection of citizens under the law.

Basically, when it comes to voting,  the Supreme Court has identified two constitutional voting issues. The first is vote dilution — one group or community’s vote counting more than another’s. The second is arbitrary and disparate treatment, primarily involving access to a ballot.

And the dime-store version of a voting challenge involves a balance. One balance is a state’s right to control the process, ensuring equality between voters who meet basic requirements. This right is then balanced against the diluting effect of illegal ballots.

Legal votes count. Illegal votes should not count.

Politically, post-election discussion has confused or omitted the distinction — sometimes referred to as voter fraud or a disenfranchised voter — in favor of one argument over another.

Illegal Ballots

Illegal voting is not new.

As noted by Justice Stevens on the Supreme Court, “flagrant examples of such fraud … have been documented throughout this Nation’s history by respected historians and journalists.” Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008).

The same is true for fraud involving absentee or mail-in ballots; this too is not new.

As noted recently by a federal appellate court judge, courts have repeatedly found that mail-in ballots are particularly susceptible to fraud. Texas Democratic Party v. Abbott, 961 F.3d 389, 413–16 (5th Cir. 2020) (Ho, James concurring). Past examples were given in that case, including a 1997 Miami election that was overturned on the basis of absentee ballot fraud.

At least one court, in 2016, recognized the potential for mail-in ballot fraud and that it would pose a significant threat. Veasey v. Abbott, 830 F.3d 216, 239, 256 (5th Cir. 2016).

And that decision came out four years before today.

The overall theme is that there are examples of voter fraud, including fraud when voting by mail; however, much of the discussion is that it could happen, and is ripe to happen.

Mailing It In

Which brings in this particular election.

Let’s talk statistics. In the 2016 presidential election, 99% of returned absentee ballots were counted. Some states have adopted an all-mail election; the key statistic is that only 1-2% of absentee ballots are rejected.

In 2016, that meant about 300,000 absentee ballots were not counted.

Fast-forward to 2020. In Wisconsin, during an April election, 1.55 million people voted, with nearly 1.1 of that number voting “absentee”. Not all votes absentee were counted. In fact, more than 23,000 ballots were rejected. This means that approximately 2% of the absentee ballots were excluded from the results. Multiple reasons were given for rejecting a ballot. The primary reason was that a voter and a witness must sign the ballot envelope and include the address of the witness.

Extrapolate out the numbers. Wisconsin’s 2% rejection rate is on-par with the national average. If the same statistic holds, we will see an increase in the number of rejected mail-in ballots from the 2020 presidential election.

From a raw number standpoint, that number should be high.

It should be enormous. Wisconsin is one of 29 “no excuse” states that allows residents to vote absentee for any reason. In prior elections, Wisconsin had low vote by mail participation. Not so for the recent election.

This year nearly 3.3 million votes were cast, with approximately 1.95 million votes cast absentee. Most analysts, even before the election, offered the opinion that mail-in voting would favor Democrats in the election — if true, going into election day, the Democrats had a huge lead.

The Fraudulent Count

I suggest key metrics to this election will be two-fold. It begins with rejected ballots.

In Wisconsin we’ll know how many ballots were rejected, and we’ll know soon.

Based on recent elections and percentages, we can expect that 39,000 ballots were rejected. If the number is significantly less, knowing Joe Biden won Wisconsin by approximately 23,000 votes, you would have to ask why. Did Wisconsin voters learn from the spring election. Did Wisconsin voters get better at filling out the needed information for a valid ballot. Or was their something else afoot, in either accepting ballots or casting ballots that contributed to perceived success.

A legal challenge, rather than raw vote, could shape up to whether votes were counted that should have been rejected.

The same is true for provisional ballots. A provisional ballot allows someone to change their vote or correct a problem with their vote.

A provisional ballot can be used to record a vote when there are questions about a given voter’s eligibility that must be resolved before the vote can count.

This is not unique to an election.

But it may be unique to a 2020 election. If many more provisional ballots were allowed in 2020, you would have to ask why, in what circumstance, and whether the ballots were counted.

Disenfranchised Voter

A big and important word such as “disenfranchised” voters has been cast about. This is real. It means depriving someone the right to vote.

Fraud is also real. As stated in the Texas federal court, “[T]he right to vote is fundamental to our constitutional democracy. But it means nothing if your vote doesn’t count. And it won’t count if it’s cancelled by a fraudulent vote—as the Supreme Court has made clear in case after case.”

The problem is that both fraud and disenfranchised voters have become political. Particularly over mail in ballots.

One side claims that, without a mail-in option, people are deprived the right to vote. Disenfranchised. The other side claims a mail-in election either does or may lead to fraud, thus cancelling out someone’s rightful vote. Disenfranchised. Sometimes the arguments are made from both sides, at the same time, such as stop counting the vote but start counting the vote that should be counted. Both republicans and democrats have spouted these ideas post-election. Both have claimed that their voter was disenfranchised or fraud was committed.

Politics aside, don’t lose the forest through the trees, and be careful. The words have taken on different contexts and applications, and in many ways prove-up the opposite meaning of what you may be intending to convey.

Voter Intent

Furthermore, when it comes to election issues, the mail in election has a history.

Some commentators have suggested that an all-mail election was first proposed by republicans. Democrats were opposed. The theory was that a mail-in election favored the rural voter, and thus favored the republican demographic. The opposite seems to have occurred in 2020, with the urban, highly democrat areas approaching record number of mail in votes. The argument appears to be one of ballot harvesting which, in layman terms, means going door to door in collecting (“harvesting”) ballots to turn it all at once. Or worse, to produce all at once that results in a change in the results.

The point is that a mail in election can tend to hide, regardless of the party, the actual intent of the voter.

Did the person have a choice when they filled out the ballot to choose a candidate of their choosing and own volition.

This choice can be lost through a mail in vote.

Essentially, the poll-worker has a choice. Assume a vote is by mail. Assume a question arises from the ballot. Maybe it isn’t properly filled out. Close but not complete. Or it arrived at the wrong time, or without a post mark. Or in one large tranche. The poll-worker has the job of determining intent — what did the voter intend — while also determining legality. With each state having its own set of election laws that determine and are supposed to guide that decision.

Just because someone wants to vote doesn’t mean that they have properly voted, under the law.

And when safeguards are removed for mail in elections, say, in a time of COVID, the consequence is allowing more opportunity for either outright cheating or an invitation to discredit the result.

Wisconsin Counting

Over the last year, hundreds of pre-election lawsuits were filed making the same points.

Many of them in the swing states now in the news.

This was perhaps no accident.

In Wisconsin, a Wisconsin federal judge granted a request to extend “counting” of votes past election-day, only to have the federal appeals court overturn that decision.

Crudely summarized, the appeals court held that not only was this an issue for the Wisconsin legislature to decide, but the change was inappropriate so close to the election.

The United States Supreme Court declined to review the appellate decision — meaning it neither ratified nor rejected that reasoning. Multiple justices wrote both for and against the decision to hear the case; however, the result stood.

The Wisconsin vote-count was completed the same-day (or at least within a few hours of election day).

Pennsylvania Counting

A similar counting challenge exists in Pennsylvania, and is ongoing.

The case is different than in Wisconsin. Pennsylvania has different election laws. Moreover, the case in Pennsylvania was based on a ruling from the highest court in that state. That court allowed counting of ballots past election day, including those ballots received but post-marked after election day.

Like Wisconsin, the ruling made its way to the United States Supreme Court. Once again, the Supreme Court declined to review the appellate decision — meaning it neither ratified nor rejected that reasoning.

The difference, however, was that a group of the Supreme Court directed that certain ballots be “set aside” as the issue may arise again.

Basically, the Supreme Court did not hear the merits of the case, and the ballots are being counted. Whether they will be ultimately included in the count, based on a future court-decision, is for another day.

North Carolina Counting

North Carolina was dealing with different issues. Three weeks ago, the federal court in North Carolina considered a challenge to absentee (mail in ballots).

The issue was complicated. To cast an absentee ballot in North Carolina required a witness signature. The general idea is that if someone casts a ballot in-person, a poll worker can verify a signature at the time. So to replace the poll worker, North Carolina would allow a voter to cast their ballot along with a separate witness. The witness would sign the ballot — doing the job of the poll worker.

Some States require that a mail in ballot be notarized; North Carolina and many other States do not.

Yet in the weeks before the election, the North Carolina election commissions issued directives about whether to accept/reject a ballot without a signature. The argument was COVID. Because of a pandemic, the witness signature was unnecessary, per election officials.

The court concluded this was a problem. However, the court also concluded that the court was prevented, at the time, from changing that directive so close to the election. Part of this ruling appeared to be the stage of the case. Part of this ruling was because those who brought the case were, at the time, not the proper parties to make that challenge. It led to an odd result that the court could not act “at this late date, even in the face of what appear to be clear violations”. Moore v. Circosta, No. 1:20CV911, 2020 WL 6063332, at *30 (M.D.N.C. Oct. 14, 2020).

The stage is set for continued legal challenges over issues that at least one court said were violations.

Georgia Counting

The rejection of ballots also happened in Georgia.

Georgia’s experience is from two years, following the governor race. In that case, ballots were rejected due to missing or insufficient information requested in the elector oath — failure to provide a matching signature or address information. Democratic Party of Georgia, Inc. v. Crittenden, 347 F. Supp. 3d 1324 (N.D. Ga. 2018).

Under Georgia law, any person can request an absentee ballot. When requested, the county registrar must compare the person’s identifying information to the information on file. If they match, the person must be sent an absentee ballot. The absentee voter must sign an elector’s oath. Georgia also allows provision ballots. State officials have time to process provisional ballots to determine whether they will be counted.

So when you are hearing counting, in 2020, about provisional ballots and issues out of Georgia, much of it comes from what was decided in 2018.

In particular, the Georgia federal court allowed the counting of a ballot even if it omitted or included an erroneous birth date of the voter. The reasoning was that the birth date was “immaterial” to the voting process. The court did not address, however, whether a missing signature, incorrect address, or other clerical errors were “immaterial” to verifying the identity of the voter.

When the Trump campaign suggests issues with the vote in Georgia, much of the argument is likely related to missing voter information on an absentee ballot.

Summary Of Mail In Ballot Elections

The point is that States now in the news have a recent history of election-based litigation.

And post election lawsuits are not new. It happened in 2000. Al Gore did not concede the election (retracting a concession) and had multiple rulings go his way. In that case, and other places, the lawsuits brought important guidance to counting ballots and the election process; guidance to disputes that exist today.

All of which underscore the bigger question on the voting right itself.

Much like the electoral college itself, there was and is a known balance in the Constitution and election process within our nation. This balance cannot and should not be discarded by the prevailing party.

A mail in election highlights the issue.

Indeed, the lesson from 2020 is that mail in elections come at a cost. That cost can be in the form of actual fraud. That cost can be more tangential, such as the propensity for fraud. The cost can be even larger, lending question as to the legitimacy of the result. Are these costs worth the sacrifice? In all circumstances? At all times? Regardless of the result?

To be sure, no matter what side you were on in 2020, my hope is post-election litigation will flesh out the concept for better, more-informed discussion in 2020 and beyond, something that this “bonus” blog and the many that proceeded it have important perspective often (and sorely) missed.

 

Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action.