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University of Michigan Law School University of Michigan Law School Scholarship Repository

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2020

Voting by Mail: Issues and Resources

Virginia A. Neisler University of Michigan Law School, [email protected]

Available at: https://repository.law.umich.edu/librarian/37

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Recommended Citation Neisler, Virginia A. " by Mail: Issues and Resources." Mich. B. J. 99, no. 8 (2020): 46-8.

This Article is brought to you for free and open access by the Other Publication Series at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Law Librarian Scholarship by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. Michigan Bar Journal August 2020 46 Libraries and Legal Research

Voting by Mail: Issues and Resources

By Virginia A. Neisler

s the world navigates the worst home jurisdictions.7 Over time, absentee .16 This ruling may be used to chal- pandemic in living memory, ballots have been made available to civilian lenge the secretary of state’s recent actions. America has been faced with voters at home and abroad. Today, federal However, since the secretary of state pos- A the prospect of holding a fed- law requires all states to send ballots to mili- sesses comparatively broad delegated power eral presidential election amid a public tary personnel and citizens overseas.8 At the to administer , the outcome of a health crisis. In the spring of 2020, when the state level, 16 states require voters to pro- challenge is uncertain. coronavirus began to spread rapidly in the vide a reason for requesting an absentee Regardless of the outcome, a statewide United States, election officials in many states , approving only those who are un- ballot proposal amended the state consti­ opted to extend absentee voting deadlines able to vote because of issues like illness/ tution to make it possible for Michiganders or postpone elections altogether to reduce disability, incarceration, work schedule, re- to request an without pro- the risk of disease transmission.1 In antici- ligious beliefs/practices, etc.9 Twenty-nine viding an excuse.17 This means that every pation of a resurgence of COVID-19 in the states, including Michigan, allow voters to Michigander has a constitutional right to cast fall, the scheduled November election has request an absentee ballot without provid- an absentee ballot regardless of their rea- caused concern for many officials who have ing a reason.10 The remaining five states— son for doing so. searched for potential solutions to make the , , , , and Wash- 2 upcoming presidential election safer. ington—primarily conduct elections by mail VBM benefits a particular One solution being implemented is the and automatically send ballots to every reg- political party/demographic expanded use of absentee ballots or vote istered voter.11 by mail (VBM).3 Some believe VBM is nec- Much of the empirical research exam­ essary to decrease risk for voters and poll Michigan’s recent actions ining the real-world effects of VBM adop- workers so they are not forced to sacrifice tion, partial and total, shows that there are a fundamental right of democratic society Controversy recently arose when Mich- modest increases in when for safety.4 Others believe VBM will lead to igan Secretary of State Jocelyn Benson compared to in-person voting.18 Few studies widespread voter fraud, undermining the mailed applications for absentee ballots to have been able to disaggregate the data to legitimacy of an election and the institution all 7.7 million registered voters in the state show effects in politically significant dem­ of democracy itself.5 One of the most high- to encourage use of absentee ballots in the ographic groups, but those that have at- profile critics of VBM is President Trump, face of the COVID-19 pandemic.12 That ac- tempted to do so show a slightly greater who has tweeted criticisms of the institution tion drew public criticism from President increase in turnout among the youth and generally and of Michigan’s recent encour- Trump, who dubbed the move “illegal” and racial minorities when compared to other agement of VBM specifically.6 With so much Benson “rogue.”13 Benson has broad dele- demographic groups.19 The authors of Com- controversy surrounding VBM, this article gated authority to administer elections, but positional Effects of Vote by Mail Elections addresses some of the most common con- a 2007 Michigan Court of Appeals case pro- on Voter Turnout note that even with those cerns within historical context and provides vides a possible source of opposition.14 In slightly greater gains, youth and racial mi- resources for learning more about the VBM that case, the Court held that local city clerks norities continue to be underrepresented process across the country. did not have the power to provide applica- compared with their older, white counter- tions for absentee ballots lacking a written parts.20 Another demographic group that is 15 VBM in the United States or verbal request. The Court made it clear slightly more likely to vote if VBM is per- that municipal officers only possess those mitted or required are rural voters.21 The concept of casting a vote without powers that have been expressly granted by But increased turnout does not appear to ever visiting a on the legislature, and found that the statute give an advantage to any political party. Re- is not a new one. Absentee ballots in the governing absentee ballot administration cent research comparing data collected from United States were first issued during the does not implicitly empower city clerks to 1996 to 2018 from three states confirmed pre- Civil War to enable soldiers to vote in their mail unsolicited applications for absentee vious findings that no political party gained August 2020 Michigan Bar Journal Libraries and Legal Research 47

an advantage from the implementation of But Pennsylvania’s experience in process- • MIT Election Data & Science Lab, VBM.22 Recently, some have suggested that ing hundreds of thousands of absentee bal- Voting by mail and absentee voting the increasingly partisan rhetoric surround- lots for its in early June behavior in the 2020 election related to use this “new normal.” Difficulties in processing [https://perma.cc/XR2U-9VG5] of absentee ballots, but it is difficult to pre- an unusually high number of absentee bal- Data scientists at MIT examine voting 23 dict what that might be. lots for its primary—causing a delay of sev- by mail’s history, administration, and eral weeks—demonstrate the need to redis- known issues. VBM leads to increased tribute resources to absentee processing and voter fraud prepare for a possible delay in the election Voter fraud results as ballots are counted.34 Care must be • The Heritage Foundation, Risk of fraud has been a major concern taken to ensure that voting remains acces- Election Fraud Database since absentee ballots were first introduced sible to disabled voters.35 Researchers also in the United States.24 Widespread problems warn of the possibility of more rejected and [https://perma.cc/SGA7-VS7X] with vote fraud led to the adoption of secret lost ballots.36 For the November 2020 elec- ballots and limits on third-party collection tion, all states encouraging VBM will need The Heritage Foundation keeps an inter- of ballots in the late nineteenth century.25 to take heed of past warnings and prepare active database of fraud cases in recent A 2005 report from the bipartisan Commis- for a drastically different election cycle. years. Cases are taken from as far back as sion on Federal Election Reform noted that 1946 and include every proven instance “[a]bsentee ballots remain the largest source Additional reading of fraud as well as its conclusion. This of potential voter fraud.”26 A 2012 report database is not comprehensive, but is the notes that VBM creates risks that simply do Election management and general most frequently cited source for proof of not exist with any form of in-person vot- absentee voting information voter fraud in the United States. ing.27 Both reports reflect the consensus that • National Conference of State • Merbahni, Heritage Fraud Database: the risks of voter fraud are higher with VBM. Legislatures, Voting Outside the An Assessment, Brennan Center for However, proponents of VBM argue that Polling Place Report Justice (September 8, 2017) while the risks are higher, there is no ac­ fraud-database-assessment> count, there have been only 143 criminal [https://perma.cc/2V9X-K39Z] [https://perma.cc/NA4E-DX6E] convictions for vote fraud involving the This interactive web report provides an The Brennan Center for Justice research use of absentee ballots in the past 20 years, overview of all 50 states’ absentee and all- team critically analyzes the Heritage Foun­ amounting to about .00006 percent of all mail voting policies and procedures. The dation’s database, looking at the cases votes cast.29 Additionally, today’s VBM states report outlines the advantages and dis- included and categorization and charac- have adopted an array of protections de- advantages of the practices and covers terization of those cases. signed to mitigate the risks associated with how states handle aspects of administra- mail-in ballots, including signature compari- tion such as qualifying for absentee bal- 30 Vote-by-mail son and ballot tracking. These states report lots, applying for and returning ballots, 31 • The Voting Technology Project: extremely low incidents of fraud. and processing of ballots upon return. Looking Back, Looking Ahead, • U.S. Election Assistance Commission, The CalTech/MIT Voting VBM is a panacea for pandemic Voting by Mail/Absentee Voting Technology Project (July 2016) election administration edu/2016/07/21/vtp-report-the- vember 2020 election may be a foregone [https://perma.cc/JHB7-6ATA] voting-technology-project- conclusion. States, including Georgia, Michi- This website provides state and local ad- looking-back-looking-ahead/> gan, and Pennsylvania, are actively encour- ministrators with “COVID-19 specific re- [https://perma.cc/769D-683Y] aging absentee voting as a means of making sources and other resources to help elec- This report from CalTech/MIT exam- elections safe in the event of a COVID-19 tion officials identify procedures, strategies, ines the efforts of the Voting Technology surge in November.32 These efforts have and policies for ensuring mail ballots get Project, established “in December 2000 borne fruit. Pennsylvania, for instance, has cast and counted, and all election-related to prevent recurrence of the problems already received 1.8 million absentee ballot materials that help citizens cast these bal- that threatened the 2000 US Presiden- applications for the upcoming election.33 lots are delivered in a timely manner.” tial Election.” Michigan Bar Journal August 2020 48 Libraries and Legal Research

• Bergman & Yates, Changing Election 10. VOPP: Table 1: States with No-Excuse Absentee (May 12, 2020) [https://perma. Vote-By-Mail Affect Individual research/elections-and-campaigns/vopp-table- cc/8A7V-PP7X] and The Republicans Telling Their Registrants?, 10 Election L J: Rules, 1-states-with-no-excuse-absentee-voting.aspx> Voters to Ignore Trump. Politics, and Policy 115 (June 2011) [https://perma.cc/K26W-7PNQ]. 24. The Absentee Ballot and the , p 492. 11. Id. 25. Id. at 490–492. 26. Building Confidence in U.S. Elections: Report of the [https://perma.cc/U9ZM-Y9E2] 12. Spangler, Secretary of State: All Michigan voters will get absentee ballot applications at home, Commission on Federal Election Reform, Comm on This digital version of a published article Detroit Free Press (May 20, 2020) and research. n ballot-applications-in-mail/5218266002/> [https://perma.cc/W769-QXBF]. [https://perma.cc/58NH-ZY9X]. 2 7. Voting: What Has Changed, What Hasn’t, and What 13. Trump attacks Michigan’s Secretary of State and Needs Improvement, CalTech/MIT Voting Project Virginia A. Neisler is Huseman & Spies, Ignoring Trump and Right-Wing Report (2012), p 41 [https://perma.cc/UTH9-EAAM]. Research Services at the propublica.org/article/ignoring-trump-and-right- 28. Id. University of Michigan wing-think-tanks-red-states-expand-vote-by-mail> 29. McReynolds & Steward III, Let’s put the vote-by- Law School Library. She [https://perma.cc/3JN5-6FG7]. mail ‘fraud’ myth to rest, The Hill (April 28, 2020) MSLS from the Univer- [https://perma.cc/N6BR-HYUF]. 15. Id. at 104. 30. Security Features of Voting by Mail/Absentee Ballots, sity of North Carolina 16. Id. at 94–95; MCL 168.759(5). and is a licensed attorney in North Carolina. National Conference of State Legislatures (June 22, 17. Ballot Proposal 18-3, available at PTV_635256_7.pdf> [https://perma.cc/A3DT-Q2DZ] [https://perma.cc/N8XF-ZJ76]. and Const 1963, art 2, § 4. See also Stafford, ENDNOTES 31. Kamarck & Stenglein, Low rates of fraud in Voters approve Proposal 3, bringing sweeping vote-by-mail states show the benefits outweigh 1. 2020 State Primary Election Dates, National changes to Michigan’s election law, Detroit Free the risks, The Brookings Institution (June 2, 2020) Conference of State Legislatures michigan-voting-proposal-3-results/1885266002/> mail-states-show-the-benefits-outweigh-the-risks/> [https://perma.cc/3WX2-RFRM]. All websites [https://perma.cc/Z7R3-SWY7]. [https://perma.cc/R38D-W585]. cited in this article were accessed July 8, 2020. 18. Gerber, Huber & Hill, Identifying the Effect of 32. Ignoring Trump and Right-Wing Think Tanks. 2. Two Myths: Postal Voting: The arguments against All-Mail Elections on Turnout: Staggered Reform 33. Janesch, Will Pennsylvania’s primary be the wake up expanding voting by mail in America rest on a in the Evergreen State, 1 Pol Sci Research and call needed for the November election?, Lancaster pair of misconceptions, 435 The Economist 10 Methods 91 (2013); Kousser & Mullin, Does Voting Online (May 29, 2020) Fraud, Brennan Center for Justice (April 10, 2020) Institutional Reform in Oregon, 89 Soc Sci Quarterly [https://perma.cc/B9RA-9DYT]. 19. Atsusaka, Menger & Stein, Compositional Effects of Count Mail-In-Ballots Amid Unrest, 3CBS Philly [https://perma.cc/F4W4-ZH6B]. Vote by Mail Elections on Voter Turnout, Manuscript (June 1, 2020) . Ignore Trump, The Atlantic (June 5, 2020) April 4–7, 2019 [https://perma.cc/FPJ3-SNZ8] Compositional+Effects+of+VBM+Elections+ 2020) [https://perma.cc/RPR3-N25Q]. disability/news/2020/05/19/485218/vote-mail-one- State with false claim; Benson quickly responds, 20. Id. at 15. many-ways-ensure-disability-community-included-next- MLive (May 20, 2020) [https://perma.cc/8KMN-JA6K]. public-interest/2020/05/trump-attacks-michigan- How Does Mandated Vote-By-Mail Affect Individual 36. Baringer, Herron & Smith, Voting by Mail and Ballot secretary-of-state-with-false-claim-benson-quickly- Registrants?, 10 Election L J 115 (June 2011) [https://perma.cc/7DGT-8X55]. doi.org/10.1089/elj.2010.0079> [https://perma. of the Coronavirus, University of Florida (April 25, 7. Fortier & Ornstein, The Absentee Ballot and the cc/9PZQ-XJZ2]. 2020) [https://perma.cc/PN83-EQVS] and Voting Act, 100 Stat 924 (1986). Research Working Paper 20-015 (April 2020) Shino, Suttmann-Lea & Smith, Voting by Mail in a 9. VOPP: Table 2: Excuses to Vote Absentee, National [https://perma.cc/7Y6S-LFLN]. aspx> [https://perma.cc/T3QL-BV6H]. Mail Gives One Party An Advantage, FiveThirtyEight [https://perma.cc/DHB9-DUJP].