With the November election less than four months away, and the certainty that it will involve a dramatic increase in the amount of voting by mail, we recently recorded an episode of Reasonably Speaking to discuss some of the legal issues that might arise surrounding voting by mail. We were joined by Justin Levitt of Loyola Marymount University Loyola Law School and Lisa Marshall Manheim of University of Washington School of Law to talk about what we have seen happen already in the 2020 primaries and lessons that can help as we prepare for November.

Specifically, we talked about what traditionally has been referred to as absentee voting (which should be distinguished from “all vote by mail” processes, in which the local election jurisdiction sends a ballot to all registered voters, a system that we did not discuss). Today, almost two-thirds of the states make absentee voting or voting by mail available to anyone who desires to vote that way, whereas historically absentee voting had been limited to only those people who could provide some kind of excuse or justification for an absentee ballot.

Of course, states have many options in how to implement voting by mail or no-excuse absentee voting. How to do it well has been the subject of considerable attention in the past decade, before COVID-19 hit, including by The American Law Institute in its Principles of the Law, Election Administration.

In the podcast episode, we consider the additional complications of voting by mail that have been introduced by COVID-19, given the dramatic increase in the number of voters who want to take advantage of that mode of voting. We have already seen in the primary elections that election administrators in many states have found it difficult to handle that dramatic increase. As we near the November election, time is running short to make adjustments, both administratively and as a matter of legal structure, in how to support voting by mail in a dramatically increased quantity.

Part of that support includes preparing for the extended amount of time absentee ballots often take to process. The primary reason that certifying the results of an election takes some time is because the election officials are making sure the count is accurate. With respect to mail-in ballots in particular, that process includes verifying each individual ballot to make sure that it is from an eligible voter. That is a cumbersome process.

Pre-COVID, good reasons existed for states to favor in-person voting over mail-in voting, as the ALI Principles reflect. However, we now live in a new world where voting in-person has previously unanticipated risks.

Furthermore, in June, Georgia experienced what by all accounts was a real meltdown in its primary election, principally with respect to in-person voting (although Georgia also had some problems with its mail-in voting). Observing what happened in Georgia is likely to push even more people to want to vote by mail this November. Yet long before the problems in Georgia, we were seeing problems in the votingby-mail processes in Pennsylvania, Maryland, the District of Columbia, and elsewhere.

The Wisconsin primary last April is the poster child for these problems: tens of thousands of Wisconsin voters did not receive their requested mail-in ballots until it was too late for the ballots to be cast.

Voting processes, whether in-person or by-mail, must be both safe and reliable. Every voter must be able to expect that if they comply with the voting rules in their jurisdiction, they will be able to cast a valid vote. We hope that November’s election will not give rise to the kind of problems we have seen in the primaries. If we fail to provide every eligible voter a genuine opportunity to vote safely, then we will have failed to live up to our national commitment to protect every voter’s ability to participate in the exercise of self-government, as embodied, for instance, in such Constitutional provisions as the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, and landmark federal statutes such as the Voting Rights Act. We hope we do not have to say that about the 2020 election.

So, how can you help?

The American Law Institute has made its Election Law Principles, including the portions that focus specifically on absentee or mail-in voting, freely available to all election administrators throughout the United States. As ALI members, you can help by sharing these Principles with legislators, administrators, and anyone who may be working now to implement a strong and trustworthy absentee voting process before November. Meanwhile, from now through Election Day every effort should be made to inform voters of the voting options available to them in their particular jurisdiction; to encourage anyone who wishes to vote by mail to apply for their ballot early and return it promptly; and to prepare the electorate for the possibility that official results may not be available until several days after polls close on November 3.

Sarah H. Cleveland

Coordinating Reporter, Restatement of U.S. Foreign Relations Law

Sarah Cleveland is the Louis Henkin Professor of Human and Constitutional Rights and faculty director of the Human Rights Institute at Columbia Law School. She is a noted expert in international law and the constitutional law of U.S. foreign relations, with particular interests in the status of international law in U.S. domestic law, international and comparative human rights law, international humanitarian law, and national security.

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.

Pauline Toboulidis

The American Law Institute

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