By Charles Stewart III, MIT

Things are moving fast on Capitol Hill regarding emergency stimulus funding and its relationship to making the 2020 election safe in the midst of the coronavirus emergency.

Here are some thoughts about the two major pieces of legislation that have been proposed on this subject, the Natural Disaster and Emergency Ballot Act of 2020 (DEBA) in the Senate and the ACCESS Act in the House. (The ACCESS Act is part of Nancy’s Pelosi’s broader “Take Responsibility for Workers and Family Act.”) Both are similar—in some cases, identical.

To discipline things, I have organized my thoughts along the lines of the ten steps that Nate Persily and I proposed in the Lawfare Blog last week on the needed response of the nation in light of the medical crisis. These comments are mine alone, not Nate’s. Each heading is one of the ten steps. The text that follows is commentary.

1. The United States must plan for a significant shift to mail balloting for the 2020 election. This legislation provides one model for nudging states toward a significant shift in offering mail balloting. The biggest shift would come for states that currently require an excuse to receive an absentee ballot, which numbers seventeen in all. In 2016, eight states saw fewer than 5% of ballots cast by mail. By mandating that states, at the very least, move to a “no-excuse” regime, there will undoubtedly be more mail balloting in 2020. How much more will depend on the receptiveness of voters and the urgency of the situation come next fall.
2. The nation must commit to supporting the logistical effort necessary to conduct mail elections with integrity and efficiency. These bills won’t, by themselves, create the logistical infrastructure necessary to conduct mail elections with integrity and efficiency. As we specify in the Lawfare article, voting by mail is complex. In the states that have expanded it the most, they have done so over several election cycles, fine-tuning the process as time went along. Certainly, money will be necessary to finance any expansion of voting by mail. What is more critical is the expansion of management capacity to match.
3. Any efforts to expand voting by mail in time for the November election must appreciate the partisan polarization surrounding changes in election rules. To state the obvious, no Republicans have signed onto these efforts, which doom them from the start, at least as written. This is not to say that they’re a waste of time. Certainly, they provide a starting point for bargaining and for signaling to allied groups that the Democratic Party is committed to these issues. (On this point, the absence of a highly visible congressional Republican plan to address the election emergency is telling.)  However, it must be recognized that all the energy around the House and Senate efforts has created a Republican backlash in Congress that is making it more difficult to support measures that Republicans might otherwise support, such as providing funds to states to pursue the strategies they feel the most comfortable with, without federal prescriptions. In that context, the recent op-ed piece by Michael Steele and Eli Lehrer in the Washington Times encouraging conservatives to get behind expanded vote-by-mail in November is heartening.
4. States should approach this situation as an emergency, not as an opportunity to make long-term changes to election policy. This is another dimension on which the House and Senate efforts run contrary to the recommendations Nate and I made in the Lawfare post. Both the House and Senate efforts mandate that states make permanent changes to their election laws, and to make long-term investments in technologies. As we note in our post, Florida and New Jersey have previously interpreted state laws flexibly in the face of hurricanes bearing down on them as elections were being conducted, only to return to the status quo after the emergency had passed. Citizens understand extraordinary actions taken in extraordinary situations. To push a major permanent policy shift under the guise of an emergency will be viewed suspiciously by a large segment of the population, and certainly by the political class.
5. States need to reconsider the division of labor between state and local authorities in the conduct of elections. It is not clear that these efforts address the state-local balance of responsibility directly, nor should they necessarily. However, assuming that most states will be spending the next few months planning how to ramp-up mail-ballot operations quickly, it makes sense to imagine that states will bear greater responsibility for certain new logistical burdens, even in states with strong traditions of local control of elections.
6. Election officials need to be working with the Postal Service immediately to ensure a smooth transition to expanded mail balloting. These efforts do not address the Postal Service directly, other than provide a vehicle for diverting more business its way—which is a good thing. We all know the USPS has its struggles. Nonetheless, it views its role in conveying ballots with pride. The detail here is that local USPS operations and election officials in states that have had low vote-by-mail volume will now need to create working relationships that have taken years to establish in vote-by-mail states. As with all things related to voting by mail, it takes a while to develop these working relationships. We have to anticipate that there will be local bumps in the road.
7. States need to communicate clearly to voters how mail ballots will be distributed, and develop plans such that ballots actually get to the voters intended. The House bill requires states to provide systems so that voters can request mail ballots online, and then track then electronically. This is good public policy. I doubt, however, that states without these capacities already will be able to develop them in time for November, unless they are already working to create this capacity. In the past, hastily developed electronic request systems have created security vulnerabilities. And, in general, ballot-tracking systems have taken years, not months, to develop. The harder we push everyone to vote by mail this November, the more we will have to plan for the fact that some voters will not get their ballots mailed to them.
8. In-person voting won’t go away. This is where I believe the House and Senate efforts fall the shortest. Yes, we need to push more people to vote by mail, on an emergency basis, to protect public health and ensure that the November election will proceed on schedule. Still, there are a lot of reasons to believe that in-person voting will continue to be the dominant mode of voting in 2020, especially when we combine Election-Day and early voting. Other than a general requirement that states develop emergency plans for conducting elections during health emergencies, I don’t read anything in these efforts that particularly target in-person voting.
9. Election officials need to communicate with the public to address the anxiety that is likely to attend the counting of votes. It is probably too much to ask any legislation considered by Congress to address this point.
10. Adjustments to voting rules must respect behavioral regularities that voters have demonstrated over the years, and are unlikely to change, even in the midst of a public health crisis. This is tied to point # 8. We have to assume that tens of millions of people will choose to vote in person in November 2020. Legislation that focuses on moving voters to mail balloting doesn’t directly address this fact, other than to reduce the number of in-person voters, which can’t be dismissed. That’s not a trivial thing, but it is important to devote attention to organizing in-person voting to safely accommodate everyone who wishes to vote that way. Furthermore, we have to assume that most voters will not pay attention to COVID-19-avoidance measures for the election until sometime late in October. Again, it is probably too much to ask a single bill to focus on all aspects of the public health emergency, but it is telling that the House and Senate efforts sidestep the significant challenges to public education that face election officials in 2020.

Overall, the House and Senate efforts have received a lot of press attention, but must be understood as a Democratic plan for the 2020 elections, not as a blueprint for a bipartisan solution for the emergency at hand. Even though I agree with the aims of much of the legislation, I suspect that the effort to push a policy agenda so closely allied with Democratic orthodoxy talking point creates a bump in the road toward negotiating the final bailout package. Leaving my reservations aside, the presence of a Republican majority in the Senate and a potential presidential veto make these legislative efforts dead letters, at least in this Congress.

This doesn’t mean they are dead letters in the long term, though. We should remember that an early version of the National Voter Registration Act (NVRA) was passed by a Democratic Congress in 1991, only to be vetoed by President George H.W. Bush. Despite losing the battle, Democrats tried again in 1993, following the election of Bill Clinton, who signed the NVRA into law.

In the world we live in now, I hope the position-taking among congressional Democrats, to stake out a long-term position about election reform, does not undermine the immediate, pressing issue, which is to give election officials the support they need now, to get done what needs to be done to assure the November 2020 election goes off as planned.