The military’s voting process is not a panacea for the challenges of the fall elections

Since the pandemic began, a discussion about how to ensure voters can safely participate in the 2020 election has erupted.  Some claim balloting by mail is the magic formula for the challenges, and think civilian jurisdictions just need to adopt the military’s vote-by-mail process. As with so many things about the COVID-19 crisis, this issue is more complicated than it seems.

My own view is that while there is a place for some mail balloting, it’s a mistake to think emulating the military’s process is a panacea.  Shouldn’t the fact that in 2018, as I discuss below, only 26% of military voters actually cast a ballot by any process give us pause before giving its remote voting system an unqualified imprimatur?

What’s more, do we really know enough about the unintended (and, perhaps, intended) consequences of other-than-in-person voting conducted in a massive way in a civilian setting – particularly by the 90% of the states who have never attempted such an enormous increase in mail balloting? 

Indeed, do we really think that in the midst of a pandemic it can be reliably scaled up in time for what will surely be a controversial fall election?  Let’s unpack some information so you can decide for yourself.

The military’s voting process

A couple of weeks ago, a reporter asked me about the military’s vote-by-mail process but, unfortunately, put none of my cautions and concerns into her article.  She wasn’t alone in presenting only rosy assumptions about military vote-by-mail.  Larry Korb, a respected former DoD official and Naval officer now a senor fellow at the Center for American Progress, cites the military’s vote-by-by mail process and can’t fathom any legitimate reason as to why the “rest of America” can’t do the same.

Actually, among other things, the military’s voting process operates under a very unique set of Federal law not applicable to the “rest of America.”  In 1986, Congress passed the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requiring states and territories to permit members of the armed services, their families, and citizens living abroad to register and vote absentee in federal elections.

However, it was not especially successful as the Federal Voting Assistance Program (FVAP) says that of the “one million ballots sent to military and overseas voters in 2006, only one-third were cast or counted.”   FVAP explained:

“Many overseas military members lacked sufficient time to vote — enough to request, receive and return a ballot in time for it to be counted — according to a 2009 report by the Pew Center on the States. It found that up to half of states needed to improve their absentee voting process to ensure overseas military voters could obtain a ballot with sufficient time to return it.” (Emphasis in original.)

As a result, Congress passed an amendment to the UOCAVA in 2009, the Military and Overseas Voter Empowerment (MOVE) Act.  As the Department of Justice said in 2010, “[a]mong other provisions, the MOVE Act requires states to transmit validly-requested absentee ballots to UOCAVA voters no later than 45 days before a federal election, when the request has been received by that date, except where the state has been granted an undue hardship waiver approved by the Department of Defense for that election.”

The FVAP says that “the protections given under the MOVE Act have been effective in reducing this barrier to voting.”  However, some may be surprised at what “effective” means in this context.  For example, consider this from the FVAP website:

So, yes, it is an improvement of sorts, but will the American public tolerate a situation where 17% of voters weren’t able to vote because their ballots didn’t arrive on time or not at all?

Do we think that somehow the bulk of the states who have never attempted mail-in voting on this scale will be able to do better in the fall with tens of millions more voters than the military process ever tried to accommodate?

In addition, take a look at the graphic below, also from the FVAP website:

Why was it that “nearly one-third of [military] non-voters wanted or tried to vote but were unable to do so”?  The FVAP says “There are different reasons that motivated non-voters did not cast a ballot, such as a lack of information to complete the absentee voting process or challenges with the process like not receiving a ballot or receiving it too late.”

Again, would it be acceptable to the American public that as many as a third of voters wanting to vote weren’t able to do so, as was the case with the military in 2018?

Online voting?

FVAP also noted that some military members voted by an “electronic” means, including online:

“Despite extremely limited availability, five percent used an online website or portal to return their absentee ballot in 2018. Email is the most popular electronic option with 12 percent of military absentee voters using it to return their ballot. (Emphasis in original.)

As indicated in the graphic below from the FVAP website another 1% faxed their ballot, bringing the total of military voters using an “electronic” means to vote to 18%.Is voting online a solution?  Many Americans approve of online voting, but as Politico recently reported, most cyber security experts oppose it.  In a letter to state authorities many organizations warned:

“The COVID-19 pandemic presents an unprecedented challenge to American elections. At this time, internet voting is not a secure solution for voting in the United States, nor will it be in the foreseeable future. Vote manipulation that could be undetected and numerous security vulnerabilities including potential denial of service attacks, malware intrusions, and mass privacy violations, remain possible in internet voting.” (Emphasis in original.)

Although some in the military used the “limited availability” of online voting to cast their ballot, in my mind that’s not an endorsement for nationwide expansion.  The question is, do we really want to have millions of voters across the country casting their ballots online, despite the near universal view that the online process is so vulnerable? 

Shouldn’t we be concerned, as the experts are, that a nation-state adversary could exploit that online vulnerability and manipulate the vote?

The military’s low voter participation rate

One thing the advocates of adopting the military’s process for the “rest of America” rarely mention or try to explain is the voter participation rate that system produces.  It isn’t encouraging.  Here’s what FVAP shows:There may be many reasons beyond voting methodology that could explain why members of the armed forces vote at half the rate of civilians “with similar demographics.”  After all, the military is, as the Supreme Court puts it, “by necessity, a specialized society separate from civilian society,” adding that the “differences between the military and civilian communities result from the fact that ‘it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.'”

Regardless, absent a full understanding of the military’s low voting rate, should the process it uses be implemented for the “rest of America”?

Is Wisconsin the test case?

In the civilian setting, received wisdom has long been that remote voting via mail did not afford either party an advantage.  However, that theory proved wrong in Wisconsin’s recent election.  Consider this New York Times report from April 21:

“The liberal candidate in Wisconsin’s hard-fought State Supreme Court race this month prevailed in voting by mail by a significant margin, upending years of study showing little advantage to either party when a state transitions from in-person to mail voting.”

The Times says their analysis came to a different result than what had been previously found because “[n]one of the academic studies cited as evidence that there was no partisan advantage to mail voting had been able to segregate mail voting results from in-person ones for a single election.”

Regardless, the difference in voting patterns between vote-by-mail and vote-in-person was pretty graphic:  the Times says the “liberal” winner “performed 10 percentage points better than her conservative opponent in votes cast by mail than she did in votes cast at Election Day polling places” and that powered her win.

Why the difference?  The Times says the “gap suggests that Democrats were more organized and proactive in their vote-by-mail efforts.”  It also quoted a Rice University political scientist who concluded that “the Wisconsin results showed the ability of Democrats there to build a statewide vote-by-mail system essentially from scratch just weeks before the election.”  He also said:

“You probably had much more core frequent and Democratic voters voting by mail and late-deciding voters waiting to vote at the polls,” he said. “The Democrats proved they can mobilize their voters to vote by mail.”

This raises all sorts of questions.  Obviously, the result will incentivize both parties to get “get organized and proactive” across the nation and “build…statewide vote-by-mail system[s].”  What limits, if any, should there be on the political parties activities in this regard?  Will it further advantage the side with the most money?

Moreover, should a democracy want to establish processes that may further diminish the number of “late-deciding voters” who, by definition, have a greater opportunity to gather information about a candidate – to include decisive information that may emerge after those who voted by mail had already sent in their ballot?

Did the way Wisconsin conducted its vote contribute to the outcome?

It also may be that the way Wisconsin decided to conduct its election benefited the winner.  Since it appears that in-person voting favored the conservative candidate, it could be significant that the state drastically reduced the number of in-person polling places, forcing some voters to wait in line for as long as five hours to cast their ballot.  Here’s how FiveThirtyEight described it:

Across the state, a shortage of poll workers led to the closure and consolidation of many polling places, which resulted in extremely long lines on Election Day. For example, Milwaukee — a city of almost 600,000 people — had just five polling places open (in normal circumstances, it would have 180 polling places). As a result, wait times in Milwaukee averaged an hour and a half to two hours, with some voters waiting as long as two and a half hours to cast their ballots. In Green Bay, a city of 105,000 that downsized from 31 polling places to just two, some voters waited nearly three hours.

Why weren’t more Wisconsin Guard troops mobilized by the governor to help open more of the regular polling places?

To address the shortage of poll workers, “[m]ore than 2,400 Citizen-Soldiers and Airmen from the Wisconsin National Guard mobilized to state active duty to serve as poll workers across Wisconsin during the April 7 election.”

Obviously, it wasn’t enough, and it isn’t clear why more weren’t mobilized as the state says it has about 10,000 serving in its Army and Air National Guard organizations.  (It’s illegal to bring Federal troops or federalized National Guard troops to polls.)

You decide: to what extent should government going forward take into account data which shows that the way people vote – and the availability of the means of doing so – can influence the outcome of an election?  How far should government go to accommodate different methods of voting when it might reasonably know the results could be affected?

The spectre of “ballot harvesting”

Another issue with the Wisconsin vote is the spectre of “ballot harvesting” it raised and what that might mean for the fall elections.  The Wall Street Journal editorialized on May 22 that while ballot harvesting “isn’t widespread” the laws in 13 states are silent about it, including Wisconsin.  The state allowed ballots to be returned by “a family member or another person” which, the Journal wryly noted could in the fall “technically” cover “anybody at the door in a Biden shirt or a Trump hat.”

It then set out a “nightmare” scenario of a disputed election in November, and called for states to “tighten deadlines and ban ballot harvesting.”  It added:

“The push for all-mail voting is relentlessly focused on ballot access, which is important. But ensuring ballot integrity is crucial for public confidence in election outcomes and, ultimately, for democratic legitimacy.”

Was there a health impact?

The reason vote-by-mail was so promoted in Wisconsin was fear about coronovirus infections.  As it turns out, about 413,000 people voted in-person, and thousands more worked at polls.  Yet on May 17, the Austin (TX) Statesman rated as “mostly true” a politician’s statement that “Wisconsin has not had a spike in coronavirus cases that was ‘statistically significant related to the fact that they had voting’.”  It explained:

“Wisconsin has linked 67 coronavirus cases to the April 7 primary election in the state, a small fraction of the state’s total cases. But the data is limited. Health officials said there is significant uncertainty surrounding these figures, and the election’s true [numbers] might be impossible to determine.”

Thinking about the challenges of fall elections

Is fraud one of the main challenges to remote voting this coming fall?  Traditionally, many experts said that mail-in voter fraud, like all voter fraud, is “very rare.”   When fraud does happen, we are told, it “is often committed by insiders, not voters, and limiting mail balloting…would not deter it.”  Steve Mulroy, a law professor at University of Memphis, states vote fraud “certainly isn’t (a reason)” not to move to mail balloting under the current circumstances.

However, let’s recall that the experts also believed that there was “no partisan advantage to mail voting” – something that the Wisconsin result upended.  Given the unprecedented nature of the pandemic, the past paucity of fraud isn’t necessarily prologue.  Indeed, isn’t it conceivable that rapidly changing state voting processes will increase the likelihood that the system could be abused, exposing the voting system to risks that aren’t reflected in past voting experience?

The absentee process already has some vulnerabilities that in person voting does not have–namely “chain-of-custody” issues when the ballot is released by election authorities, and the lack of supervision of voters when they complete a ballot.  Nevertheless, some do point out that the handful of states that have adopted universal vote-by-mail have shown it can be done securely.”

But the real question today is whether the other 45 or so states and territories who don’t have nearly as much experience can put together the necessary infrastructure and expertise on an accelerated timeline under unprecedented circumstances. 

Actually, the most substantial obstacles to expanding by-mail voting seem to be efficiency and effectiveness. The existing logistical and administrative challenges associated with voting by mail–more burdensome procedures, rejected signatures, errors in processing and lost ballots–will only be compounded and made more complicated, and new challenges will arise due to the sheer number of ballots being transmitted and counted via mail.

Of the almost 139 million Americans who voted in the November 2016 presidential election, no more than “24 percent were cast using by-mail absentee voting.”(Military and overseas voting accounted for only a little over 600,000 votes). Five states currently have universal vote by mail, where each registered voter receives a ballot in the mail, while another twenty-nine states offer “no excuse” absentee voting to anyone who requests a ballot by mail.

While it’s true 30 million votes were cast absentee in 2016, states that permit or compel vote-by-mail have extensive experience with, and commitment to, an effective voting infrastructure. As one Heritage Foundation commentator summarized, “states that have adopted full vote-by-mail…spent years developing their systems.”  Some problems in tracking and counting mailed ballots, for military as well as domestic absentee voters, are structural. Many things can go wrong–ballots are routinely lost or destroyed in transit, and even more are eventually rejected at their destination, often because a signature doesn’t match a registration form.

As one commenter stated, “in contrast to polling places, there is no one to help you…mail voting mistakes are fatal to your vote.” As many as 32 million mail ballots “effectively disappeared, went to the wrong house, or were rejected” since 2012 in states with complete or partial mail voting. Edward Foley summarizes: “voting by mail requires additional steps, all of which are susceptible to problems that do not exist when voting in person.”

Time is of the essence.  Writing in the New York Times Magazine, notes that most states have very limited experience with mail-in voting and believes that in order for them to “fundamentally change the way voting has been done in those states, they will have to move quickly to sign contracts with vendors and then order supplies” – a  transition, she observes, that “will cost money.”

Ohio State law professor Foley further points out the “heightened risk of litigation over absentee ballots,” and a need for states “to clarify as soon as possible the rules that their own courts are supposed to use in litigation that might arise” – all reasons for speed, but let’s not forget that speed can rapidly devolve into unproductive haste.

Congress has, however, allocated $400 million to help states “prevent, prepare for, and respond to the coronavirus for the 2020 federal election cycle.”  Even with this federal money, it isn’t clear to me that the military vote-by-mail process could be scaled in every state to accommodate the vastly larger civilian voting population, and it may be that the procedures and infrastructure would need substantial re-adjustment for large scale vote-by-mail. Michael McDonald, an election expert at the University of Florida, warned the New York Times that {states} “they don’t have the equipment,” and would struggle with the complexities of vote-by-mail.

Finally, in an April 23 report (“Mail voting and COVID-19: Developments and Potential Challenges”) Karen Shanton with the Congressional Research Service outlined an array of very practical, nuts-and- bolts challenges to scaling up the domestic U.S. voting architecture to handle mail balloting:

Legal complications

There is no real analogy to the two key military voting laws (the and the MOVE Act) applicable to civilians domestically.  In fact, even if vote-by-mail is the prudent policy choice, the federal government may not be able to compel states to facilitate vote-by-mail.  This is because of the application of Constitution concept of federalism which references the power-sharing arrangement between the states and the federal government (an always complex legal issue in the context of voting rights).

In my view, federal laws like the MOVE Act can compel states consistent with the Constitution to do certain things to facilitate voting by members of the armed forces, a group of people firmly under the jurisdiction of the federal government and whose rights have always been treated differently by the courts.

However, in the civilian setting some opponents of mail-in voting have cited federalism concerns. Rep. Rodney Davis (R-Ill) told Politico that the Republicans’ philosophy guides the belief “that the states and localities are the best ones to get their voters to the polls.” Mitch McConnell has repeatedly echoed these sentiments, stating that “the federal government is not going to take over the way we do elections.”

Conservative group Judicial Watch along with former California congressman Darrel Issa have brought a suit against the State of California in response to Governor Newsom’s recent executive order requiring officials to send all voters mail-in ballots. The complaint claims that the order violates the elections clause of the constitution, which empowers the states to determine “Times, Places, and Manner of congressional elections,” and that the new system established by the executive order supersedes existing state election law.

Ronald J. Krotoszynski, Jr. of the University of Alabama School of Law, agrees that “both legally and historically, the states take primary responsibility for running elections,” but points out Congress has the “final say-so regarding congressional elections.” The federal government has exercised this power in the past “to make it easier to register and vote.”

It is possible that “a recalcitrant state could override the federal mandate (for by-mail voting) and require in-person voting for local and state elections and for presidential electors, because Congress does not enjoy explicit constitutional authority to set the rules for these contests.”

However Krotozynski believes it’s unlikely that a state would require different voting procedures for Congressional elections, and local and presidential elections.  In fact, it is the President’s recent threats to withhold federal aid from states expanding by-mail voting that could be violating the Spending Clause’s prohibition on state coercion.

Again, the real question may be whether or not all this can be sorted out in the next very few months.  I’m skeptical.  I’m also concerned about how divisive the arguments may become.

Some final comments

Federal and state officials may decide voting by mail is the best of many sub-optimal solutions to the problem of voting during a pandemic. However any discussion of its feasibility, and the applicability of the military’s spotty vote-by-mail record, must be realistic about the existing challenges and the complications, particularly of scale.

Frankly, even were it demonstrated to be a wise development, it’s hard for me to see how a vastly-enlarged vote-by-mail system that is effective (and fraud-proof) could be established in time for the fall elections.  I am concerned that even with the best of bipartisan efforts, a host of COVID-19 associated practical difficulties – apart from remote voting – already threaten to disrupt the fall election.

All of this could obviously threaten national security.  In a March 27th CRS report (“Disrupted Federal Elections: Policy Issues for Congress) R. Sam Garrett warns that “[d]epending on circumstances, disrupted elections could foster public doubt about the legitimacy of election procedures or results.”  I’m 110% sure America’s enemies would pounce on that doubt and seek to exploit it.

If we are too hasty in letting the pandemic upend how we exercise our constitutional rights, there could be extremely serious consequences, so let’s proceed with some real caution.

Still, be sure to vote in November!!!

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!


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