Mail Vote Challenges Are Likely; Will States Be Ready?

While serving as secretary of state of California for eight years, I had the opportunity to oversee many elections, including some outside of our state. I was honored to be asked to visit both Nicaragua and Mexico to review their election processes.

In Nicaragua, I saw long lines of people standing in hot, humid conditions to participate in the first election after the Sandinista/Contra war in the 1990s. In Mexico, I observed the watershed election of July 1997, which changed one-party rule in the country.

In each of those elections, accusations of voter fraud called into question the validity and integrity of both governments. In Mexico’s case, I.D. verification at the polls, and even ink marks on voters’ thumbs after voting, served to assure Mexican citizens and other countries that the election was fair. Election integrity is a hallmark of legitimate governments and governance. 

One hundred percent voter participation and zero tolerance for fraud were our administration’s goals throughout my time in office. These twin goals are only accomplished when election management is viewed as one continuous process. Each action in the management of an election is dependent on the next action in order to facilitate confidence in the eventual outcome. Clean voting files, ballot integrity, voter outreach, and voter handling of ballots are all equally critical and important.

Some people state that voter fraud does not exist. To that contention, I simply point your attention to the more than 1,000 individuals facing prosecution in Georgia for voting multiple times.  

One should also consider the municipal election this past May in Paterson, N.J., the third-largest city in the state. That election demonstrated how a mail-in ballot process can be potentially gamed and abused. Ballot irregularities and allegations of fraud stemming from mail-in voting led to a significant number of ballots being invalidated and a judge-ordered new election. Based on the expected widespread use of mail-in ballots this coming election, we could see similar issues repeated all across the nation. 

Election law is decided by state legislatures and varies from state to state, which means that the dominant political parties in each state and local politics often determine election laws. On the positive side, state-based election laws keep the voting process diffused among the states and largely out of the hands of Washington. This diffusion of power is a feature of our country’s federalism, in which the nation’s founders believed so strongly. It is up to a state’s secretary of state to ensure, to the best of his or her ability, that the voting process is fair and open, often in spite of the politics of the state legislature and dominant political party. 

Since the 1993 passage of the National Voter Registration Act (or Motor Voter Act), which requires states to allow eligible citizens to register to vote when they apply for or renew their driver’s licenses, however, many states have simply ignored or worked around maintenance requirements, including upkeep of voter rolls and notices sent to inactive voters. These seemingly small actions have monumental consequences, as elections can be decided by dozens of votes at the local level, a few thousand at the state level, and a few tens-of-thousands at the national level.

Dramatic changes in election procedures so close to an election are reason for concern for anyone interested in fair elections. I am deeply concerned about California’s mandates, through Gov. Gavin Newsom’s executive order and Assembly Bill 860, that all California voters must receive a mail-in ballot before the Nov. 3 election.  

California and other states that have enacted similar all-mail voting procedures have significant structural issues that may well lead to court challenges across the nation. Rapidly changing voter registration rolls in all-mail elections can cause ballots to be mailed to locations where a person may not reside, no matter how good the intentions or efforts of the registrar to maintain clean voter rolls. We are now seeing very disturbing reports in California that more than 400,000 ballots may have been sent to individuals who have changed addresses or are deceased.

Similarly, based on population numbers, Nevada’s voter rolls seem to be in worse shape than California’s, with approximately 225,000 primary ballots in Clark County alone mailed to people who had moved or died. This is simply unacceptable and a recipe for fraud. 

Further, more than half of states permit some form of ballot harvesting, and California has some of the laxest ballot harvesting laws in the country. In 2016, California passed a law allowing any person to collect and return absentee ballots. As a result, campaigns, political parties, and other outside groups can all legally pay operatives to collect absentee ballots, even if they have no relation to the voters. This misguided law creates opportunity for tremendous fraud and voter disenfranchisement. State leaders should condemn ballot harvesting by all groups and political parties and call for a repeal of all ballot harvesting laws.

All-mail elections can, and often do, work well in states like Oregon or Washington, but it takes time and diligent efforts to ensure integrity. I believe California and many states are ill-equipped to handle the changes that have been thrust upon them. This piece is not an indictment of state registrars, but rather an indictment of flawed laws, like those that permit ballot harvesting, and partisan lawmakers.

Despite its challenges, California has taken one important first step to ensure election integrity. Ahead of the general election, the California secretary of state launched an online platform, “Where’s My Ballot?” which allows absentee voters to track their ballots and receive notifications when their ballots have been mailed, received, and counted. This innovative program makes it easy for all voters in the state to ensure that their ballots are counted, and it thus serves as a check against voter fraud.

Nicaragua and Mexico needed to go to extreme measures to bring confidence back to their electoral processes because their citizens and the rest of the world had lost confidence in their elections. The frenetic, headlong rush to establish widespread voting by mail for the first time in many states, coupled with the heated passions of our polarized electorate, almost guarantee that there will be disputes over the results of the upcoming election. It is critical that the courts prepare for election challenges, assemble knowledgeable judges, and allocate court time and court staff to rapidly address questions that arise after Nov. 3.   

As in all elections, we should strive to meet the goal of 100% voter participation and zero tolerance for voter fraud. We must encourage all to vote during this election, while ensuring that our election process retains respect and legitimacy in the eyes of our people. The world will be watching.

Bill Jones served as California secretary of state from 1995-2003.

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