In this episode
We pick up where we left off in our last episode on voting during the COVID-19 pandemic.
Timing and cues
This Week in Science History: Katy Love
Editing and music: Brian Middleton
Research and writing: Jiayu Liang and Pamela Worth
Executive producer: Rich Hayes Host: Colleen MacDonald
Colleen: Mike, is it conceivable that the election in November could be postponed?
Mike: So the presidential election could only be postponed with enormous difficulty at the federal level. The date for the election is set by federal law, that is congress, and it’s been set since 1845. So in order for the federal government to change the election date, a law would have to be passed by Congress, that is both houses, it would have to be signed by the president, and then it would have to survive numerous court challenges. So it’s very unlikely that at the federal level you would see that change. The president could try to use emergency powers to do so, but even then the slate legislatures are really the important actors here because they can arguably control the timing and manner of elections as set by the Constitution, so you could get some state legislative action that might try to postpone the election. But even there, of course, you’re talking about a multi-state attempt to postpone or delay the election. So that would be very difficult.
Colleen: Can you imagine a scenario where an election would be postponed? I guess I’m curious, what does... is it spelled out in the constitution what should happen if we couldn’t have our election?
Mike: No, not really, I mean there’s a presupposition that there are going to be regularly held elections. I mean we’ve held elections in times of difficulty and even emergency. We’ve held an election during the Civil war, we held an election during the last major flu pandemic in the early part of the twentieth century. So the most likely scenario, if the president was going to try to postpone the election, would be to use his emergency powers and to issue an executive order to postpone or delay the election result. But that would immediately be challenged in court.
Colleen: So it would be unprecedented for an election to be postponed and sounds like, pretty much impossible. But are there things going on in individual states that give you pause?
Mike: Oh absolutely. We are seeing a number of efforts on the parts of states to control their electorates, as they often do. And one of the things that we’re seeing is a kind of bifurcation of how election laws are being changed in anticipation of the November election under the conditions of the COVID pandemic. And so many states are expanding their registration deadlines, they’re sending voters absentee ballots, or more frequently they’re sending all of their voters applications to apply for an absentee or mail ballot. But then there are a number of other states such as Texas and Wisconsin and several states that are actively seeking not to lift up voter restrictions. Alabama as well, so several states are still requiring voters to have witness or notary signature requirements to apply and submit absentee ballots.
And there are a number of states that are working in the opposite direction. Rather than making it easier to vote and trying to provide an equal opportunity for all voters to cast a safe and secure ballot, we are definitely seeing some states that are at a minimum, not lifting restrictions, and in some cases not acting to provide the infrastructure and the support that local election officials need in order to secure the right to vote for all voters. So for example, the attorney general of Texas achieved something of a victory in the Supreme Court recently when the Supreme Court allowed the attorney general to not expand no-excuse absentee voting. So in Texas, you still have to have an excuse or be 65 or older to apply for an absentee ballot. That was challenged under the equal protection clause of the Constitution and the Supreme Court upheld that the states can control that. So those are the sorts of tactics and techniques that you’re likely to see and that we’re already seeing as we head into the election.
Colleen: What is the worst-case scenario for the November election?
Mike: It gets pretty bad actually. So the worst-case scenario is really just one of uncertainty. That is, we have a lot of confusion and a lot of chaos around the election itself. That is we've got very long lines, you've got people that either don't show up because they don't wanna risk their health. Or we have people that do show up and then they leave because they're waiting in line for so long and that makes the quality of the votes cast uncertain. We won't have a representative sample or a robust turnout that we can be confident that the election results reflect the will of the people.
In addition to that, if we have a surge of vote by mail coming into states that are not prepared to process those, it's going to take a long time to process those ballots. And even with in-person voting, long election lines on election night means that those ballots are gonna take longer to count which means that we won't know who the winner is of various contests, including the presidency on election night.
And you compound that with the fact that we might have major problems with processing those ballots if states don't have the equipment that they need to process those ballots adequately, they don't have the training or the poll workers. And what that creates is uncertainty, we don't really know how confident we can be in the results.
And if we don't know how confident we can be in the results, and if parties and agents that are interested in using that uncertainty for their own political gain have an opportunity to point to those irregularities, then people can use that uncertainty to get the election that they're looking for. That is to claim that there's widespread voting fraud to make all kinds of unsubstantiated claims. And to claim authority, to claim power when we really don't know who the winner of the election is. That's the worst possible outcome.
Colleen: I agree with you. That’s pretty bad.
Mike: No, it really is about as bad as it can get. I mean, frankly, this is how democracies die. When there's uncertainty over the process, and when people and groups have an incentive to use that uncertainty for their own political ends, to either claim authority that they may not necessarily have, or to refuse to cede authority even when the election results are somewhat clear. Any kind of uncertainty gives leverage to those who would seek to either obtain or retain power without the legitimacy of the election.
Colleen: Well, I'm glad we've talked about the worst-case scenario here because hopefully, that will incentivize people to act now. And you did mention that, you know, getting Congress to act on the HEROES Act is really important. So I wanna talk about solutions. It sounds like the work that needs to be done to make the election in November, it seems pretty straightforward. How do we get there? How do we do it?
Mike: Well, the first thing that we need to do is to get Congress to act. In the CARES Act, which was the first COVID bill, Congress allocated about $400 million for election infrastructure for all the states. And several studies, the Brennan Center and several other organizations, have actually calculated out the need to scale up vote by mail and provide the needed safety and security infrastructure for all 50 states. And the number there is closer to 4 billion.
So what we're looking for with the next COVID bill, which is the HEROES Act, is an additional $3.6 billion that would be allocated across to states according to their needs. That would provide local election officials with the resources they need to actually scale up. And there really is no alternative to this because states don't have...especially in this economic climate, you know, as you can imagine, states don't have the extra resources needed to build their infrastructure out. And so states are really in a very difficult position in terms of having their budgets slashed, and at the same time needing to scale up their election infrastructure. So that's the first thing that needs to happen.
The second thing that needs to happen is that that money needs to have very clear guidelines and targeted allocations. So we know what works, we need to provide voters more options. So every state needs to provide voters with the option to vote by mail. States that have more options for voting have shorter lines, there's less congestion, less risk of infection on election day. So
those options should include vote by mail, they should include early voting. And they should include a robust and safe way to vote in-person on election day for voters that need that. So those are the three options that voters need.
We also know that in order to reduce congestion and waiting time, we need to expand points of service to the greatest extent possible. And so even though states may be forced to consolidate precincts, we need to, to the extent that it's possible, ensure the number of voting machines per precinct is maximized given safety standards because the points of service affect the time to vote. And if we can reduce the time that it actually takes to check-in and to cast a ballot and to move through the line, we can greatly reduce the length of line and waiting time. And that reduces the time of exposure to the disease with other people.
So we want to expand points of service, expand options, and reduce the transaction time for voting. If we can do those three things, we can ensure that we'll have a safe and healthy election. And with the additional infrastructure funding, we can ensure that the processing of those ballots is done in a way that's equitable. And we need those national standards in place to ensure that the process, for example, of verifying ballots as they come in, processing those ballots in a timely manner, and ensuring that when there's a question of a valid ballot, that states should err and local election officials should err on the side of the voter.
That is as a two-party system where you've got multiple judges evaluating ballots, if there's something wrong with a voter's ballot, they should have the opportunity to correct it. So we need requirements and standards that allow voters to be contacted in a timely manner if there's a problem with their ballot. And they have both the methods and the time needed to correct that problem.
Colleen: So Mike, what would an example of a problem with a ballot be?
Mike: Well, let's say someone forgets to sign the back of their envelope, right. I mean, you've got a lot of people that are gonna be voting by mail for the first time in their lives. That means that we're going to have a higher number of problems with ballots. People that either forget to sign the back of their envelopes before they mail it, or they don't put on the postage if the state doesn't pay for the postage, or if the signature doesn't match, for any of those reasons, those votes won't count unless the voter is given an opportunity to correct those problems.
And we have best practices, states like Colorado and Oregon, have really, you know, well-designed practices. They've developed a vote by mail systems over years rather than months. And so they notify voters within a few days if there's a problem with the ballot. And they allow multiple methods from photo ID to sending back in a new ballot with an adequate signature to...you know, they provide various ways for voters to verify that they are who they say they are. And that's really important, and that's why we need standards that put the burden on local officials to reject a ballot rather than putting the burden on the voter.
Colleen: Is vote by mail supported in a bipartisan way?
Mike: Yes, in fact, the small group of individuals that are making these unsubstantiated claims about vote by mail are not representative of any political party or ideology. And so, one of the lead signatories to our expert letter that went out, there was a collection of health and election experts, includes Trevor Potter, who's the president of campaign legal center and is a noted conservative, and was legal counsel to John McCain's presidential campaigns. And was appointed by Republicans to head the FEC, the Federal Elections Commission.
There are a number of organizations, Protect Democracy being another that we work with that includes many notable conservatives and republicans. Including the Republican Secretary of States for many of the states, Utah, Oregon, and Washington that run universal vote by mail. So they have the experience, they know that it works and they support expanding it nationwide.
Colleen: So I want to go back to what we were talking about we touched on this a little bit earlier, and that is that people who are more at risk, people who live in urban areas, often communities of color, people with disabilities, that they are, at a higher risk of contracting COVID-19 when going to cast their vote in-person. Are the measures that you talked about... will it address those issues?
Mike: Yes, the goal should be to reduce wait times and reduce length in line. Because that's the time that people are spending with one another, even with social distancing, right, that's the most dangerous time. The overall risk of infection is a function of the risk factors for any given environment. And that has to do with social distancing and being in an enclosed versus open environment and things like that, versus the time spent in that environment. And so the thing that we're most looking to reduce is the overall risk. And what we found and years of political science research has demonstrated that those particular voters and the voting precincts in densely populated areas and precincts where there's a higher percentage of voters of color, and the like, that's where the long lines occur.
And so if we're going to reduce the average overall risk, we need to reduce the wait time and the time that voters spend together. The average time spent voting is only about 10 minutes. But in those particular precincts, the voting times are anywhere from 30% to 100% longer on average. And so if we can reduce wait times by addressing the number of options that voters have, and the preparedness of the precincts, the resources, so having enough voting machines, being able to process voters efficiently and process votes efficiently, that will address those disparities directly.
You know, if you think about averages versus extremes, the average time to vote is fairly short, but it's in a small number of precincts and frankly, in a small number of states, where we see these really long wait times of an hour, hour and a half. And it's, you know, only about 1 in 20 voters has to wait more than half an hour, but those are the voters that are most at risk of infection. And we know where those precincts are, and we know the types of precincts, and we know how to fix that problem. And so that's where our resources should be directed.
Are there other things that individuals can do?
Mike: Oh, there's so much that individuals can do. Thank you for asking. So, number one, people need to update their registration. They need to make sure that their registration is updated, they need to make sure that their friends' registration is updated and their neighbors, and their co-workers. And everyone needs to make sure that they're eligible to vote because the normal process of voter registration...there's been a wrench thrown in that whole situation because people can't canvass voters, they can't do all of the in-person face to face work that is a normal part of any election cycle.
Colleen: In order to do that, if I want to do that, I can go to TurboVote and I can just talk to my friends, email them, social media, put that out there. That's how I would go about doing that.
Mike: That's right. Yeah, just remind everyone to make sure that they're eligible to vote. And to as many people as possible, if the option is there, you need to request an absentee ballot. So we want to move people from voting in-person to voting by mail, wherever it's possible. It's a lot easier in some states than in other states. But there has been an increasing number of states as our 50-state report shows. A number of states have taken action to make it easier to vote by mail, we need to take advantage of those changes. And we need to ensure that every voter that's able to can vote by mail in order to reduce the level of voting congestion and long lines on election day.
So that’s the sort of individual preparation that needs to be made. But in addition to that, Americans, and all residents, whether they're eligible voters or not, can work to make sure that their state election laws are as open as possible. And so you should write letters to your editor. You should go to UCS and see where your state is in terms of preparedness for the election, and then take action. Try to use your powers as a resident and as a voter to get election laws changed. That's another major hurdle that needs to be overcome, and we only have a few months left to do it.
The final thing I would add is that you can serve. You can make a difference. One of the biggest challenges that local election officials face this year is a dearth of polling workers. So you can use websites like We Can Vote, the Power to the Polls, and Power the Polls app. You can figure out where your local election officials are, you can sign up to be a poll worker, you can sign up to be a staff member. And you can help be part of the process to make sure that if you are not a high-risk COVID individual, you can take part in the process and you can help fill some of those gaps that local officials so desperately need filled.
Colleen: Well, Mike, that's great. I hope we've inspired some people to do that. I think I might look into that myself.
Mike: It's a fantastic tool, yeah, We Can Vote is doing a lot of things. They also provide resources to figure out what the election laws are in your state. The Voting Rights Lab also has a great states voting rights tracker that you can use that we're partnering with. And so there are a number of resources out there, but we need to get everyone involved in this election. Indeed, I would argue that we need something like you know, a nationalization of our election. Our election is in real dire straits, and the quality of our democracy is really being threatened. And so this is a time for people to step up and serve.
Colleen: Well I have a follow-up from my TurboVote activity last week. I got my application to apply for an absentee ballot here in Massachusetts. Typically, you have to hav ea reason, but they've changed that for the elction year so anyone can get a mail-in ballot. And I’m hopnig that it works well and that’s just how we handle things, you know, moving forward.
Mike: Yeah, the most efficient method, from an administration perspective, would be to send every eligible voter a ballot. And Massachusetts has moved in that direction, as has Vermont, California... But other states have done what’s sort of the second best which is to allow everyone to apply for an absentee ballot. I think it’s important to note that that is not as good of an option in the sense that it adds an administrative hurdle. So another piece of paperwork that has to be completed and sent in. And any sort of barrier, any extra administrative step that needs to be taken, is going to have an effect on turnout. That is, we know from a lot of political science research that every additional barrier, when you add a cost to voting, that that has an effect. And that typically has an effect on voters with lower socioeconomic status. So for voters where it’s hard to vote anyway, because it’s hard to find the time, take the time off, or fill out the application, you’re increasing the odds of there being an error in the application or increasing the odds of human error that the application might not be processed or processed correctly. And so the goal for states should really be to remove as many hurdles as possible in order to give everyone in the United States, regardless of where they live, the same chance to have their voice heard.
Colleen: So keep it simple, just mail people their ballots.
Mike: And that’s what I would recommend. That would be the most efficient adminnistrative procedure. And the easiest for voters.
Colleen: Mike, do you have any plans for election night?
Mike: I'm gonna be safely at home hopefully celebrating with my family and with a couple of local elected officials hopefully. That's what Zoom is for.
Colleen: Yeah, right. Indeed. Well, Mike, thanks so much for joining me on the podcast. This is...we've gone from worst-case scenario to how to save our democracy. I'm feeling hopeful that we will get there, that we'll make the preparations. And you know, it'll be chaotic but I think the will of the people, I think we can do it.
Mike: I have no doubt that we can. And you're absolutely right. One of the silver linings here is that even though this is an emergency situation, and the pressure is being put on, many of these reforms can help us to permanently open up our political system and make it more voter-friendly and ensure the rights of each and every voter.
Colleen: Great. Well thanks, Mike.
Mike: Thanks for your time.