Special Washington Update: Mail-In Ballots in 2020: Questions and Answers

Voting by mail will clearly take on a greater prominence in this year’s elections. We wanted to answer some questions we have received and comment generally on some of the potential challenges to this year’s vote count. 

Which voters can currently vote by mail? 

Every state has policies that allow voting by mail under certain circumstances. Five states conduct all-mail elections (Colorado, Hawaii, Oregon, Utah and Washington). Forty states offer “no-excuse” mail-in voting (voters do not need to cite a specific reason to vote by mail), with four of those states -California, Nevada, New Jersey and Vermont - plus the District of Columbia going the extra step of mailing all registered voters a ballot. Some states also mail registered voters a ballot application. The remaining five states (Indiana, Louisiana, Mississippi, Tennessee and Texas) require voters to have a valid reason for voting by mail (COVID-19 is currently not considered a valid reason by these states). Many of the policies in the 40 states mentioned above have been modified this year to accommodate concern over COVID-19 and in-person voting.

Source: Washington Post

Is voting by mail controversial? 

Some people believe states, local election offices and the US Postal Service (USPS) lack the infrastructure, systems and capacity to handle what is very likely to be a major influx of mail-in votes. They fear these difficulties could result in an inaccurate vote count and could provide greater opportunities for fraudulent activity. Many others have more faith in the states and USPS and believe these systems are sufficient to meet these challenges. They generally discount concerns about potential fraud by citing the small number of proven fraudulent cases associated with mail-in ballots in the recent past.

How many voters are expected to use mail-in ballots this year? 

While voting by mail has been around in most states since the Civil War, it has seen a steady increase in the past few decades. In 1992, about 15% of votes were cast by mail. In 2016, a record 24% of votes were cast through mail-in ballots (a total of 33.6 million votes). The 2018 election set a record for mid-term elections with 30 million votes cast by mail (25% of the overall vote). In the 2020 election, we expect a massive increase over those recent records. Some estimates have projected that 70% of votes this year will be cast by mail, though most believe it will likely be closer to 40%-50%.

Source: National Journal

Should voters refrain from voting by mail? 

No. For some, voting by mail may be the only option. If voters wish to vote by mail, they should do so consistent with the rules in their state. Voters should be familiar with the laws of their state so that they can follow the appropriate process and timeline for requesting and submitting mail-in ballots. States have different rules with regard to when mail ballots can be requested, how they must be filled out and when they must be returned. In most states, the first step for voters is to apply for a mail-in ballot, and they generally should do so as early as possible. With many voters likely to send in election ballots through the mail for the first time this year, there is a high likelihood of mistakes. Voters who make mistakes run the risk of having their votes disqualified, which is why knowing and following state rules and processes is so important.

What if my ballot is rejected because I made a mistake in filling it out? 

Many states have systems that allow voters to track their mail-in ballots to verify whether they have been accepted or rejected. If voters cast mail ballots that were later found to be rejected, they may still be able to vote on election day in person if they are aware of the rejection by that time. However, this option wouldn’t be available to voters who mail in their ballots on or close to election day. This is why many people voting by mail plan to vote early so they have a back-up plan if their mail ballot is rejected.

Can I still vote in person at my polling place? 

Yes, in-person voting will continue to be an option. Social distancing measures and a reported shortage of election workers in voting locations around the country may slow the process.

Will the counting of mail ballots be completed on election day?

Not in all states. This is where the process gets more complex and challenging.  Many states cannot start counting mail-in ballots until election day. Many states also accept mail-in ballots for up to one week following election day. Given that, a final tabulation of the votes in some states will not be known for days, if not weeks, after election day. This could be a significant problem in closely-contested states whose results may be crucial to the overall electoral vote. For a nation already on edge, this delay could inject confusion, doubt, chaos and uncertainty regarding the election results. Lawsuits challenging the validity of the vote count in one or more of these states, which are inevitable in close contests, would certainly complicate these situations. 

Will the increased use of mail-in ballots affect the congressional races as well?

Yes. These tallying of results in congressional races also will be impacted. Indeed, there may be a greater impact since there are more competitive congressional races across the country than there are competitive swing states that will determine the presidential election outcome. In particular, there may be uncertainty regarding results in competitive Senate races. Iowa, Kansas and North Carolina have policies to allow mail-in ballots to be counted well after election day, while Alabama, Maine and Michigan won’t count mail-in ballots until election day. The delays in counting mail-in ballots in these potentially close contests likely will delay official announcements of election winners. Given that, we may not know which party will control the Senate next year until weeks after election day. 

Are there recent examples of when mail-in ballots delayed election results?

Even in states where ballots must be received by election day, the process for tallying votes can be slow. The process involves counting by machines with painstaking reviews by election officials to verify the legitimacy of the votes. New York’s Democratic primary election in the 12th Congressional District this past June provides a cautionary tale of how long the process can take. The congressional primaries in New York were held on June 23, and while the majority of the races were determined quickly, the race between incumbent Congresswoman Carolyn Maloney (D-NY) and challenger Suraj Patel took six weeks to finalize with the results not being declared until August 5. The delay was primarily caused by the fact that the election had ten times more votes cast by mail then the typical primary does, and the infrastructure was not in place to handle the massive increase in voting by mail. 

The 2018 Arizona Senate race is another cautionary example. The incumbent senator was winning on election night via votes in person and the mail-in ballots that had been counted by that time, but a week later the race was called for the other candidate (Senator Kyrsten Sinema, who is a Democrat) due to the additional mail-in ballots. Arizona has always leaned heavily toward voting by mail, and 2018 was no different with 78% of ballots cast via mail. This shows that this process can take a long time even in states that are prepared for an onslaught of voting by mail.

Will the increased use of mail-in ballots benefit one candidate or party? 

Very possibly. Due to COVID-19, more voters – both Democrats and Republicans – will have an incentive to vote by mail. Traditionally, voting by mail has not seemingly been advantageous to either party in presidential races. The concerns raised by President Trump over some facets of voting by mail, however, may have the interesting effect of encouraging more of his supporters to vote in person on election day. Under this scenario, it is possible that President Trump will be more competitive among those who vote in person, while former Vice President Biden may be more competitive with those voting by mail. North Carolina, the earliest state to send out and receive mail-in ballots so far, has received 815,000 ballot requests to date, with 51% of requests coming from registered Democrats and only 17% of requests coming from registered Republicans; the remainder coming from voters not affiliated with either party. While this is a small sample and only the beginning of the process in the Tar Heel State, it may reflect broader trends in other states.

Share of ballots cast by mail in each state in the 2016 presidential election

In a lopsided race, the concerns expressed above will have only a marginal impact on calling a presidential winner. It is possible that either Trump or Biden will have enough of a convincing lead that any legal challenge to the results would be dismissed by most voters as frivolous, and voters would feel more confident there has been a clear winner.

However, if neither candidate can quickly amass the required 270 electoral votes without a resolution in states with close contests and delayed results, the outcome would be much more problematic. Both the Trump and Biden camps (or more likely, the side losing at the time) would likely file lawsuits for alleged fraud, the disqualification of some ballots and inclusion of others or alleged mishandling of ballots. Litigation will further delay the vote count in the affected states and possibly force re-counts. Some voters may feel a sense of illegitimacy with regard to final results.

Swing states, particularly those with less restrictive rules that allow mail ballots to be either received after election day or to be counted no earlier than election day, are likely centers of controversy. 

In particular, we will be watching states like Iowa, Ohio and North Carolina, which can receive and count ballots between three and ten days after the election. Other swing states, including Michigan, Pennsylvania, New Hampshire and Wisconsin, do not begin their counting of mail ballots until election day, which will delay their final results well after election day. Iowa allows mail ballot counting to begin the day before election day. Most other states allow the tabulation of these mail votes before election day, often as they are received. Those other states will have more time to conduct their counts of mail ballots and should not be problematic.

Rejected ballots could be subject to legal action in any state but, again, look to the larger swing states, for where this action could be most impactful on the official election of the president. Florida and Ohio come to mind.

There is a strong likelihood of a delayed election result in both the presidential race and various key Senate races. The likelihood will be increased in close races in the swing states and decreased if those races are not very close. This will be just one dynamic that will make the 2020 elections memorable and historic.