The election between President Donald Trump and former Vice President Joseph Biden is not unprecedented only because it involves the oldest nominees in history, but also that it’s amid a pandemic in which we expect to see rates of mail-in voting explode.
To better understand what to expect this November and beyond, GLG spoke with David Mason, Senior Vice President at Aristotle International and former Chairman of the Federal Election Commission. Below are a few select excerpts from our broader discussion.
What governmental bodies regulate elections? Who makes the rules and enforces them?
It’s a complex issue. Congress has authority to make legislation involving federal elections on a plenary basis and has exercised that authority occasionally. For the most part, states run elections, and in fact, the real on-the-ground work is run by local election agencies that are typically at the county or city level. It’s a very diverse process, but there’s no federal agency that has general oversight authority over elections. When there is a dispute, it’s localized. There are huge variations in election rules and practices from state to state, and in some cases, from community to community.
What was the status of mail-in voting pre-COVID?
Mail-in voting has been much more popular on the West Coast — Oregon, Washington, California, Colorado — than the rest of the country. Why? Those states probably have a greater degree of comfort in nontraditional ways of doing things. There was a lot of variation in the percentage of votes that were cast by mail, from single digits in the East and South to much higher rates out west. This year, because of COVID, the number of mail-in ballots has already increased dramatically, overwhelming administrative procedures in states that haven’t previously had to deal with mail-in, leading to problems.
What impact did COVID-19 have on the primaries and elections held so far this year? What lessons can be learned from what’s happened to date?
The lessons are really all warnings at this point, but because people were afraid to come to polling places to cast their ballots, we had a huge increase in mail-in ballots, and we also had rapid changes to mail-in ballot procedures. Both overwhelmed local election agencies in a lot of areas. As a result, there were higher invalidation rates for ballots that were cast than historically has been the case. The counting process has also lengthened. There were a couple of congressional primaries in New York that were not called for weeks after the election. Looking to the general election, we can expect more of this.
How are mail-in ballots validated?
The invalidation rate is much higher for mail-in than for in-person ballots. Prior to this election, the rate was about 4% for mail-in, compared with about 1% for in-person ballots. The validation procedures vary by state. Some states require a signature match. Others require a complex form where a lot of boxes must be checked, and if a voter fails to check a box, their ballot can be invalidated. Some states require a witness, and an improperly filled-out witness form can be the basis for invalidation. Of course, if the ballot arrives late, it can be disqualified. Roughly speaking, about half the states require ballots to arrive at the election agency by Election Day, while the other half allow ballots to be postmarked by Election Day to be counted.
How do you see litigation evolving leading up to November?
Already this year, we had a record number of pre-election suits filed, over 150 around the country, involving various things from voting procedures to absentee ballots. Both parties have extensively staffed up and are prepared for this, and so certainly if the presidential election or key House and Senate elections are close in November, we can expect a lot of litigation.
What are some of the types of litigation that we’ve seen so far?
Issues include voter registration procedures, essentially efforts to try to make it easier or more difficult to vote. Things around ID: what ID is required and whether ID is required. Absentee ballot procedures, as well as a lot of suits to try to make it easier to apply for an absentee ballot or to relax some of the validation requirements on account of COVID concerns.
Outside of litigation, what are some other considerations people should be thinking about for increased utilization of mail-in ballots?
Of course, the Postal Service has been in the news. Mail-in ballots are delivered to voters by mail, then delivered back to election agencies, and the slowdown in delivery has created a situation in which absentee ballots may not arrive at election agencies in time to be counted. That’s certainly happened in some primaries. In some cases, they were missing postmarks, which are required under the state election procedures for those votes to be counted, and so that resulted in 14% of absentee ballots in New York being invalidated during the primaries. In states where ballots only must be postmarked by Election Day, the voting process will be extended for well over a week.
Would that 14% number be something that we could reasonably extrapolate more broadly, or could we see states have potentially much higher invalidation rates?
New York election procedures, like a lot of its laws, are more convoluted than other places, so there was a higher invalidation rate there than elsewhere. Still, we can expect the national average of 4% to go up. If half the ballots are cast by mail this election, which is not out of the realm of possibility, and 6% are invalidated, that means 3% of the ballots across the country will not be valid. If we have a close election, that is a huge margin.
There’s a huge partisan difference in absentee ballot casting this year. Historically speaking, Republicans and Democrats had cast them at roughly equal rates, but during the primaries, Democrats cast absentee ballots at a much higher rate, and we can expect that to continue in the fall, in part due to the president’s comments about mail-in voting. A recent Marquette University Law School poll found that people who intended to vote in person on Election Day favored Trump by 44%. The people who intended to vote by mail favored Biden by 69%. So, one of the dynamics that could lead to is a Trump lead on election night in Wisconsin that dwindles quickly and possibly disappears as mail-in ballots are counted.
This phenomenon, which political scientists call a blue shift in election counting, has been going on for a while. For instance, in the last election, there were six congressional seats in California that Republicans led based on Election Day results, and as the absentees were counted, the Democrats ultimately won. We’ll see that dynamic playing out over days and weeks after the election. Regrettably, it’ll lead to a lack of confidence in the election results, particularly among Republicans, as what they thought were victories turn into defeats as votes are counted.
In terms of timing, we also have early voting to think about. What are your expectations for early voting turnout and then Election Day turnout this year?
With all the concern about COVID and the focus on getting votes in, we can expect early voting, which can generally be both in person and by mail, to go up significantly. In some states, such as those in the West, most votes are cast before Election Day. That means an October surprise the week before the election may not be as significant as it might have been in the past.
What changes are needed to better manage elections?
The first challenge is a huge policy disagreement between Republicans — who want more procedures to ensure election integrity to make sure that people who are voting are in fact properly registered, effectively making it harder to vote — and Democrats, who want to open up the voting process and make it easier to vote so that everyone who’s eligible to vote can do so.
The second problem is local election agencies, historically, are not well-funded, and they rely on part-timers to work the polls. A lot of those people are older, and that makes them a higher risk for COVID, so staffing will be a challenge. Obviously, if there is better funding for those local election agencies, we would have a better process.
What are your expectations for how quickly we will get a result for November’s races?
There’s nothing that I’ve seen in terms of election procedures that indicates municipalities will be substantially better prepared in November than they were during the primaries. So, Election Day won’t be Election Day. In the worst case, it’ll be several weeks until results appear. That will obviously cause a lot of litigation. The December 8 safe harbor date under the Electoral Count Act is critical, and December 14 is when electors meet in their states. If for some reason we have a dispute still going on about an important result, there could be states that either fail to cast electoral votes, or that cast votes that are subject to dispute. Votes are then counted in a special joint session of Congress on January 6.
As of today, in the presidential race, polls show a big Biden lead. If he wins by a big margin, a lot of this is irrelevant. If the race is close, we could have a big mess. No matter what happens, expect uncertainty in November.
About David Mason
David Mason has 30 years of public policy experience, including senior positions in the legislative and executive branches. He served as Member and Chairman of the Federal Election Commission from 1998 to 2008. Previously, Mr. Mason was Senior Fellow and Vice President at the Heritage Foundation, a leading public policy organization. In Congress, he was Staff Director to the House Republican Whip and advisor to a member of the Energy and Commerce Committee. During the Reagan Administration he was Deputy Assistant Secretary of Defense (Legislative Affairs). His campaign finance experience includes the political, lobbying, and advocacy activities of corporations, nonprofit organizations, and individuals, including foreign corporations and investors. Mr. Mason also has extensive experience in congressional ethics, budget and parliamentary processes, and the Administrative Procedures Act. He is currently an independent policy consultant in Washington, DC, and a Senior Vice President at Aristotle International.
This article is adapted from the July 30, 2020, GLG teleconference “Voting Logistics.” If you would like access to this teleconference or would like to speak with David Mason, or any of our more than 700,000 experts, contact us.
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