Voting by mail and the next election meltdown

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Steve Hutkins

In the November election, more than one out of five votes will be cast by mail. If it’s close, the election could be contested like Gore-Bush in 2000, and arcane postal matters, like USPS postmark policies and service standards, could take center stage in a bitter fight to the finish.
Polls released this week indicate that the November presidential election could be very close, much closer than previously expected.  In most elections, the margin of victory is large enough to avoid questions about how the votes were cast and counted, but when elections are close and contested, things like how the voting machines function and what constitutes a valid ballot can become very significant.

With voting by mail  becoming increasingly common — according to a recent study by PEW Trusts, more than 20 percent of votes are now cast by mail nationwide — the possibility of a major controversy involving mail ballots is also increasing.

Like other voting methods, voting by mail is not perfect.  Sometimes ballots are lost in the mail, sometimes they arrive at election centers after the deadline.  Mail voting is susceptible to fraud, there can be disagreements over whether a ballot is valid due to a postmark issue, and it may take days or weeks to count all the ballots, which can mean long delays without a clear victor.

A new report issued last week by the Bipartisan Policy Center (BPC) entitled “The New Realities of Voting by Mail in 2016” discusses several key issues, such as the challenges facing the Postal Service in delivering and tracking ballots and ensuring that voters know the deadlines for requesting and casting a ballot.  The report also makes a number of recommendations that would help avoid some of the problems with voting by mail, but implementing them will take time, perhaps more time than we have before the next election.

If the November election is close in even just a couple of battleground states or Congressional contests, the results may hinge on votes cast by mail and how they get counted.  Topics like the Postal Service’s service standards for on-time delivery and its postmarking practices may end up in the news the same way the hanging chads did in Florida in 2000.  Problems with the count could lead to an election meltdown similar to Gore-Bush in 2000.  It could get ugly.  

 

The voting wars

Voting WarsIn the 2000 presidential election, just a few votes in Florida were enough to make George Bush president.  While most of the attention was on the hanging chads, the absentee ballots were also important and also contested.

As Richard L. Hasen notes in his book The Voting Wars: From Florida 2000 to the Next Election Meltdown, hundreds of  absentee ballots sent from overseas that failed to comply with state laws were counted anyway, due to intense pressure from Republicans and a decision by Florida Secretary of State Katherine Harris to relax the rules. The flawed votes included ballots without postmarks and even ballots postmarked after the election.

In the 2008 election, Minnesota voters sent Al Franken to the Senate and gave Democrats the 60 votes needed to overcome filibusters. The election was extremely close — the final margin of victory was just a few hundred votes — and absentee ballots were at the center of a dispute that ended up in a court battle that went on for six months.

 

The next meltdown

While his analysis of the post-2000 battles over elections is mostly a look back, Hasen also wants to draw lessons from the past so to help avoid another election crisis.  In considering what form the next meltdown might take, he notes a study by election scholar Charles Stewart that suggests the next dispute along the lines of Gore-Bush in 2000 would probably involve voting technology, particularly in places that haven’t updated their voting equipment.

But Hasen envisions a different scenario:

Although Stewart sees the greatest potential for meltdown coming from a technology problem, I believe a more likely scenario is a dispute over the rules for counting of provisional or absentee ballots. The lack of uniformity in these rules is a serious problem. We have already seen such issues play out in Coleman v. Franken in Minnesota, and in Hunter, the 2010 juvenile judge race in Ohio that got the Sixth Circuit to expand the scope of the meaning of the Bush v. Gore case.

“If this type of dispute arose on the presidential level, there would be ample grounds for a candidate to vigorously pursue an election challenge…. And if there is a plausible basis for contesting the race without conceding, there will be tremendous pressure from party faithful to fight to the finish.”

— Richard L. Hasen notes, The Voting Wars: From Florida 2000 to the Next Election Meltdown

A preview of things to come can be found in Ohio, where voting laws involving absentee ballots are being hotly contested in the courts. Just last month, a federal judge threw out provisions in Ohio’s law that had voided absentee and provisional ballots for technical flaws made by otherwise qualified voters.

The lawsuit was filed by the Northeast Ohio Coalition for the Homeless and the Democratic Party to challenge technical requirements for Ohio absentee and provisional ballots, arguing that the rules had been applied differently from county to county. That’s just the kind of lack of uniformity that Hasen suggests could cause a national election meltdown.

 

Voting by mail in the battleground states

According to most analysts, twelve or thirteen states will probably determine the next president. They were swing states in the previous two elections, and they’re shaping up to be battlegrounds again.  The rules in these states concerning voting by mail vary considerably.

Every state in the country has a provision permitting traditional absentee voting, which requires that the voter have an excuse as defined by state law, such as needing to be out-of-town on Election Day.  But a growing number of states — including several swing states — allow one to cast an absentee vote without needing to provide such an excuse.

Some states say mail votes must arrive by Election Day, while other states — including four swing states — accept ballots a few days after Election Day, provided there’s a postmark showing that the ballot was mailed on or before Election Day.

Here’s a summary of the rules for absentee and early voting in the thirteen swing states.  (Click on the state name for further information, and for more, visit Electionary, a comprehensive online resource that voters can use to find information on voter registration rules, election dates, early voting and voting-by-mail rules, disability access, etc.).

Voting Rules in the Swing States

 

Arizona: No-excuse absentee mail voting permitted.  Ballots must be received by 7:00 p.m. on Election Day.

Colorado: No-excuse absentee mail voting permitted.  Ballots must be received by 7:00 p.m. on Election Day. Postmarks do not count.

Florida, No-excuse absentee voting. Ballots must be received by 7 p.m. on Election Day.

Georgia: No-excuse absentee mail voting permitted.  Ballots must be received by 7:00 p.m. on Election Day.

Iowa, No-excuse and early voting (i.e., absentee in person). Absentee ballots musts be postmarked the day before Election Day and received by noon on the Monday following the election.

Michigan, Excuse required for absentee voting. Ballots must be returned by 8 p.m. on Election Day.

Nevada, No-excuse and early voting. Absent ballot must be received by 7 p.m. on Election Day.

New Hampshire, Excuse required for absentee voting. Absentee ballots will be accepted until 5:00 p.m. on election day if received through the mail.

North Carolina, No-excuse absentee and early voting. Ballots must be returned by 5pm on Election Day. If the ballot is received after 5pm it will only be counted if it is received by mail three days following the election and has a postmark that is dated on or before Election Day.

Ohio: No-excuse and early voting in person. Absentee ballots must be received by the county board of elections prior to the close of the polls on Election Day, or postmarked no later than the day before Election Day and received by the board of elections no later than 10 days after the election.

Pennsylvania: Excuse required for absentee voting. Ballots must be received by the close of the polls on Election Day.

Virginia: Excuse required for absentee voting. Ballots must be received by Election Day.

Wisconsin, No-excuse required: The completed ballot must either be delivered to the clerk no later than election day or postmarked no later than election day and received by the municipal clerk no later than 4 p.m. on the Friday after the election. (More detailed rules are here.)

 

Postmark issues

States differ in their deadlines for absentee ballot submission.  At this point, 37 states require the absentee ballot to arrive on or before Election Day, and 13 states (plus the District of Columbia) require ballots to have been postmarked by Election Day.

In four of the swing states — Iowa, North Carolina, Ohio, and Wisconsin — election rules use the postmark as the determining factor for whether or not to accept a ballot. Ballots may arrive after Election Day so long as they have a postmark indicating the ballot was mailed on Election Day or before.

When votes get counted, the postmark can thus be crucial factor.  In 2013, auditors in Iowa looked at rejected ballots from the 2012 election and found hundreds of ballots that were rejected because they did not have postmarks.  In the 2015 election, thousands of votes cast by mail were tossed out in Ohio because of no postmark or because the ballot was received after Election Day and did not have either a valid postmark dated by the Monday before Election Day, or in some cases, any postmark at all.

Postmarks, as the USPS website explains, are imprints on stamped mail pieces that indicate the location and date the Postal Service accepted custody of a mailpiece.  In order to ensure a proper postmark, Ohio voters are told the following:

“If you use a postage label purchased at a USPS customer service window or vending machine, the date on the label is the postmark. This is the USPS recommended way to postmark your ballot.  If you use postage stamps, ask that it be postmarked.  You should not use a postage meter or an online service (such as stamps.com) to affix postage. It is your responsibility to make sure the ballot has enough postage.”

As these instructions suggest, getting a ballot postmarked requires extra diligence on the part of the voter.  One can’t just assume the Postal Service will put a postmark on every ballot.  That’s because the Postal Service does not postmark all the mail, and, as a general practice, it has been moving away from postmarking in favor of barcoding.  The Postal Service says that postal cancellation once served a business function but postmarks are no longer necessary.

Ballot with prepaid permit

Postmarks are not required for mailings bearing a permit, meter, or precanceled stamp for postage, nor for pieces with an indicia applied by various postage evidencing systems.  In some cases (as in the photo), mail ballots do use a prepaid permit imprint, making it unlikely the ballot will get postmarked.

It may be noted that barcoding could one day replace postmarks to track ballots, but at this point most states are first looking into it.  Iowa was the first state to allow for the use of barcodes to verify a ballot was sent in on time, but that just happened in May 2016.

Even when a patron asks for a postmark, it’s not always provided.  According to USPS policies, every post office is supposed to make its local, hand-cancelled postmark available to customers (POM 312.2) on request at the counter, but according to a postmark collector we checked with, many post offices won’t do that these days.

In those states where a postmark is crucial for ballots, it is ultimately up to the voter to ensure that the ballot is properly postmarked.  That may mean going to the post office and talking directly to the postal employee at the window, or handing theService standardsballot to a letter carrier and asking for the postmark.  Just assuming that all mail gets a postmarked could mean your vote isn’t counted.

 

Service standards

Every state has a deadline for when mail ballots must be received — either on Election Day, or within a specified period after Election Day provided there’s a postmark from on or before Election Day.  In every election, a significant number of ballots are rejected because they arrived after the deadline.  For example, in the 2008 election, nearly a third of the ballots that were rejected were not counted because they arrived late.

In most cases, the voter probably waited too long to mail the ballot.  The Postal Service says voters should mail their ballots at least a week before the deadline, but not all voters realize this, and they may think a day or two before election day should be enough, especially if the ballot is just going across town.

How long it takes a voter registration form or a ballot to reach its destination involves two factors — the Postal Service’s service standards, i.e., its goals for how long it takes to deliver each class of mail — and the Postal Service’s on-time performance, i.e., the percentage of mail that is actually delivered within the service standards.  Due to changes in postal operations, both these factors could be an issue come election time.

As discussed in the Bipartisan Policy Center’s new report on voting by mail, one of the main areas of concern involves the service standards.  As part of the Postal Service’s Network Rationalization plan to close about 250 of its mail processing centers, these service standards have been changed twice over the past four years.  The Postal Service slowed down the mail for the first time in July 2012, and it did so again in January 2015. November 2016 will be the first national election under the new service standards.  The new standards add a day or two to the expected time of delivery.

According to the June 9, 2016 issue of Postal Bulletin, which has a cover story on election mail, the Postal Service says that the changes in service standards will not affect the timely delivery of the mail: “Postal Service representatives are working closely with local and federal election officials to address and alleviate any concerns. The Postal Service is ready and committed to ensuring timely delivery of all election and political campaign mail.”

At the same time, however, the Bipartisan Policy Center report does express concern: “The impact of this change is slower mail and less processing capacity ahead of Election Day, when ballots must be returned to election offices.”

In order to avoid disrupting the presidential election in November 2012 — a few months after the first change in service standards took place — the Postal Service suspended the closure and consolidation of mail processing plants from September 1 to December 31, 2012.  The second phase of these consolidations has been on hold for over a year, and thanks to an arbitrator’s decision on the APWU contract, the consolidations will remain that way for another year, and therefore through the election.

 

Service performance

Even with plant consolidations on hold, changes in postal operations associated with Network Rationalization could become significant.  The service standards are basically just goals for delivery times, and the Postal Service rarely, if ever, actually achieves these goals.

Since January 2015, when the second change in service standards took place and processing operations were changed accordingly, the Postal Service has had big problems meeting even the more relaxed standards.  In fiscal year 2015, about 93 percent of mail with a 2-day standard was delivered on time, and only about 77 percent of mail with a 3-to-5 day standard was delivered on time.  Some mail that should have been delivered in five days or less took six to ten days.  (See this PRC report for more data.)

Another issue involves how these delivery times are measured.  If you drop off your ballot at the post office or put it in a blue collection after the mail has been collected for that day, the ballot will sit an extra day, and that doesn’t get factored into the service performance measurement.  This is an issue because the Postal Service, in order to cut costs, has also been moving the collection times to earlier in the day.

Overall, then, the Postal Service has relaxed its service standards, adding a day or two to delivery time for most mail; it has changed its operations in ways that have resulted in performance problems meeting these relaxed standards; and in some locations it has moved collection times to earlier in the day.

All in all, with the changes in service standards and collection times and the problems meeting the standards, the chances that a ballot will arrive late have probably increased since the last election.  With more and more votes being handled by the Postal Service, slower mail could turn into a big issue.

 

Waiting for the results

Another problem with mail ballots is that they can take a long time to count.  Something like five of the 8.5 million votes cast in last month’s primary in California were mail ballots, and it took over a month to count all the ballots.

Counting mail ballots in California

A recent law in California requires ballots arriving at election centers within 72 hours after election day to be counted, as long as they had a postmark on or before election day.  As the Los Angeles Times reported just this week, a number of ballots arrived at local election offices at the last minute.  “For some reason, [voters] like to hand them in at the polls or mail them the day of the election,” said explained an election official in Sonoma County.

Election workers in Sonoma had to sift through 43,000 mailed ballots that were either turned in on election day or arrived during the following three days, and the votes from Sonoma were among some of the last ones counted in the state.

Another part of the problem in California, as in other states, is that election rules vary across the state.  “There is no statewide standard, and we’re all left to interpret these things county by county,” said Joe Canciamilla, registrar of voters in Contra Costa County.

Vince Hall, the executive director of Future of California Elections, a nonprofit focused on expanding voter participation and improving elections in the state, says, “In California an ever greater percentage of the total vote is being pushed into a post-election count. And therefore, the idea you can call close races on election night is an obsolete notion.”

 

What gets counted

“It is enough that the people know there was an election,” Josef Stalin once supposedly said.  “The people who cast the votes decide nothing. The people who count the votes decide everything.”

Stalin may or may not have said this, but it’s probably more true than we would like to think.  As several close elections have shown, the people counting votes often have a considerable degree of discretion in determining which votes get counted and which votes are rejected.

Given that over 20 percent of the votes in the country are now cast by mail, there’s plenty of reason to be concerned that the next election meltdown will, as Richard Hasen fears, involve how mail ballots are counted.  Hopefully that meltdown won’t take place this November.

(For more about voting by mail, visit the home page.  There’s more about the postal issues with voting by mail here.  For more about service standards, visit savethepostoffice.com, here.)

 

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