In the face of the pandemic and rising concerns about safety at the polls, an unprecedented number of voters across the nation requested an absentee ballot for the primary elections, overwhelming election officials and bringing to light serious problems with absentee balloting processes.

Particularly in states like Wisconsin, the result was hundreds of thousands of disenfranchised and confused voters as well as doubt about what legislative action could be taken to remedy the issues.

Now with November’s election less than five months away, and the likelihood of larger-than-average numbers of citizens requesting absentee ballots, the latest episode of Reasonably Speaking brings together a panel of experts to discuss the merits and shortcomings of current vote-by-mail processes, including what went wrong in the primaries, and how the upcoming presidential election will likely face similar challenges unless changes are made.

Led by Ohio State University Moritz College of Law Professor and Associate Reporter on The American Law Institute’s now completed Principles of the Law, Election Administration: Non-Precinct Voting and Resolution of Ballot-Counting Disputes, Steven F. Huefner, this episode features the following speakers:

           – Edward B. Foley, The Ohio State University Moritz College of Law, Reporter for The American Law Institute’s Principles of the Law, Election Administration
          – Justin Levitt, Loyola Marymount University Loyola Law School
          – Lisa Marshall Manheim, University of Washington School of Law

The panelists discussed the importance of understanding and clearly defining the purpose of elections and how voting-by-mail complications may undermine that definition if not properly addressed. Foley addressed his concerns for reform at the legislative level.

“We have to keep our eye on what the purpose of an election is,” said Foley. “It’s to allow eligible, and only eligible, voters to exercise the collective choice on who the candidate should be to lead the government for the next period of time. And frankly, I’m worried that this year, because of the stresses of COVID, but other reasons as well, that it’s not clear that we’re going to be able to hold an election that conforms to that basic standard that we’re expected to achieve, and usually we do achieve. And I’m more worried now than I was three months ago when COVID started because of the partisan gridlock that is happening in legislatures … there’s just a legislative paralysis that is not good for the voters, not good for democracy in the citizenry.”

The panel also discussed effective absentee ballot administration and collection. Huefner addressed the reasons why absentee ballots often take inordinate amounts of time to process, but how as result of the pandemic more people are turning to mail-in voting than ever before:

“The primary reason that certifying the results takes some time is because the election officials are taking appropriate steps to make sure the count is accurate. And in particular, with respect to mail-in ballots, there is a process by which each individual ballot is verified to make sure that it is coming from an eligible voter. That is a more cumbersome process. Pre-COVID there were reasons to favor in-person voting over mail-in voting. We now live in a new world where voting in-person has risks. We did not anticipate that before.”

Manheim spoke about states which have had success responding to vote-by-mail problems, particularly citing the work done by election administrators in Iowa:

“In a sense, what the election administrators did in Iowa was expand the opportunity for absentee ballots quite dramatically, while at the same time, in a sensible, careful way, shrinking the opportunity for in-person voting. And by taking those two approaches at the same time, what came out of that experience overall appeared to be a success. You had record turnout in that primary election in Iowa. And you also had dramatically more people vote by absentee ballot in Iowa. One of the things that I take out of that illustration is that the administrators really decided to look at the tradeoffs and put those resources towards absentee ballot voting, for example, they sent out an absentee ballot application to every eligible voter, but then dramatically reduced the number of polling places so that the polling places that were open could be properly staffed and run. [This] feels like a success story under these trying circumstances, but there’s also a troubling coda and that’s that the Iowa legislature in response to this experience has begun the process of passing a statute that would actually reverse a lot of these changes. So, in my mind this example both shows the potential for what a jurisdiction can do, but also helps to remind us that the challenges here are not simply logistic, but they’re also political.”

The panelists also discussed other forms of alternative voting systems such as the use of emergency backup ballots by military and overseas voters. The panel voiced concerns at how these kinds of ballots could be translated for use by the general public, and how individual limitations, particularly those resulting from COVID-19, could lead to greater issues and disenfranchisement among voters.

The discussion closed with all of the panelists stressing the extreme importance of voting, and making sure that process, whether in-person or vote-by-mail, is not only effective, but accessible to everyone. Foley shared his hope that November’s election will not have to face the same issues as the primaries, “… if we fail to meet that standard of giving every eligible voter the opportunity to vote, then we have to honestly say we failed our own national commitment that we’ve made to ourselves since the adoption of the Voting Rights Act. And I hope we don’t have to say that about the election this year.”

When posed with a final question on who holds the responsibility to educate and inform voters during this period of crisis, Levitt responded:

“It is voters’ responsibility. It is the officials’ responsibility. It’s community organizations’ responsibility. It’s society’s responsibility. We’re in a mode where we have just had to teach each other, all of us, how to stay socially distant, when to wear masks. Sometimes we need reminding. That’s a very new process that we are all learning, but we taught each other over the course of two months. … We have to get back to teaching each other again. That’s a major cultural realignment that we all were responsible for … and that same sort of thing has to happen with voter registration. It has to be as urgent as Dr. Fauci giving daily updates on how registered we are in order for people to understand…”

In addition to the content explored in this episode, and in an effort to provide election officials with information regarding the implementation of proper procedures for absentee voting, ALI is making Part I of Principles of the Law, Election Administration available for free download. The principles apply to any type of elective office and are structured to be useful to multiple audiences, including state legislatures, state courts, and state officers such as secretaries of state and local election officials.

For additional information or to request a full copy of Principles of the Law, Election Administration, please contact Jennifer Morinigo at jmorinigo@ali.org or 215-243-1655.

Jennifer Morinigo

The American Law Institute

Edward B. Foley

Reporter, Principles of the Law, Election Administration

Edward Foley (known as “Ned”) directs Election Law @ Moritz at Ohio State University, Moritz College of Law, where he also holds the Ebersold Chair in Constitutional Law. His book, Presidential Elections and Majority Rule (Oxford University Press, 2020), excavates the long-forgotten philosophical premises of how the Electoral College is supposed to work. His 2016 book, Ballot Battles: The History of Disputed Elections in the United States, was named Finalist for the David J. Langum, Sr. Prize in American Legal History and listed as one of 100 “must-read books about law and social justice.” While Foley has special expertise on the topics of recounts and provisional ballots, he has also co-authored the casebook, Election Law and Litigation: The Judicial Regulation of Politics (Aspen 2014), which covers all aspects of election law.

Edward B. Foley

Reporter, Principles of the Law, Election Administration

Edward Foley (known as “Ned”) directs Election Law @ Moritz at Ohio State University, Moritz College of Law, where he also holds the Ebersold Chair in Constitutional Law. His book, Presidential Elections and Majority Rule (Oxford University Press, 2020), excavates the long-forgotten philosophical premises of how the Electoral College is supposed to work. His 2016 book, Ballot Battles: The History of Disputed Elections in the United States, was named Finalist for the David J. Langum, Sr. Prize in American Legal History and listed as one of 100 “must-read books about law and social justice.” While Foley has special expertise on the topics of recounts and provisional ballots, he has also co-authored the casebook, Election Law and Litigation: The Judicial Regulation of Politics (Aspen 2014), which covers all aspects of election law.

Justin Levitt

Loyola Marymount University Loyola Law School

Justin Levitt is a nationally recognized scholar of constitutional law and the law of democracy. Professor Levitt recently returned to Loyola after serving as a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice.  At DOJ, he primarily supported the Civil Rights Division’s work on voting rights and protections against employment discrimination (including LGBT rights in the workplace).  

Lisa Marshall Manheim

University of Washington School of Law

Lisa Manheim is the Charles I. Stone Associate Professor of Law at UW Law. She writes in the areas of constitutional law, election law, and presidential powers. Her scholarship has been published in the University of Chicago Law Review, the Iowa Law Review, the Supreme Court Review, and other leading academic journals. These works explore questions of federalism and institutionalism in the context of the judiciary. Lisa’s courses include Constitutional Law, Election Law, Legislation, and Federal Courts. She is a three-time recipient of the Philip A. Trautman Professor of the Year Award given by the student body.

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