Mailed ballots could and should be verified more rigorously without impairing citizens’ right to vote.
Mailed ballots could and should be verified more rigorously without impairing citizens' right to vote.
A s Electoral College ballots were being tabulated last week in Washington, the president’s irresponsible commentary about a “stolen election” fueled a riotous attack on the Capitol. While there is no substance to the “stolen election” allegations, an important underlying issue of election integrity remains, and if it is left unaddressed, America risks new election controversies in the future that will further inflame the body politic. It does not have to be that way.
Public confidence in the integrity of elections is essential to the preservation of our democratic system. It is precisely for that reason that enemies of our system, both abroad and at home, seek to sow doubt about and discord in our election process. Those who despise the freedom that democracy provides want badly to undermine public confidence in the voting system precisely because it is the cornerstone of the foundation of that democracy. The more that people doubt election integrity, the less inclined they are to vote — thus opening the way for bad actors to gain more influence in elections. Doubts about election integrity also undermine confidence in and appreciation for the rule of law, another bedrock of democracy — witness the Capitol mob. Sadly, declining public confidence in the integrity of elections is now fueled by politicians who irresponsibly exploit that doubt by speculating without facts.
The 2020 elections may have been affected by unreliable mailed-ballot processes, but we can never know for sure. That is because once voted ballots are separated from the mailers they came in, they merge into the universe of all ballots to be counted and cannot be removed, even if they are subsequently determined to have been cast invalidly. Once ballot mailers and the votes they contain are separated from each other, that process cannot be unwound. Recounts will, thus, just count and count again those same ballots, producing the same results within statistical norms, regardless of their validity.
State election officials claim that safeguards are in place to ensure that their mailed-ballot procedures do not allow invalid votes to be cast. But how do they know? Without audits of the mailers to determine if all accepted ballots were valid votes, they cannot be sure. What they are really stating is that their procedures to review the validity of mailed ballots work properly, but that is a conclusion, not a fact. If they really believe that their mailed-ballot process is without flaws, then, as explained below, independent audits of ballot mailers should be at the top of their agenda.
The lack of accountability for the mailed-ballot process is not a new problem. What makes it a critical issue now, though, is that more mailed ballots were used in 2020 than ever before, driven in part by the COVID-19 pandemic’s unique challenges.
The only way to prevent invalid mailed ballots from being accepted and counted is to screen them out on the front end of the election process. That is exactly where current procedures are wanting. No one in their right mind can conclude that a clerk’s fleeting comparison of signatures on a computer screen, if done at all, is the equivalent of checking identification in person at the polls. As a result, elections featuring large numbers of mailed ballots are highly susceptible to election-fraud allegations (and, indeed, to fraudulent practices). Leaving this as the status quo will surely produce more political exploitation of public doubt about election integrity, which carries with it the very real potential for more mob violence.
How committed can we be to election integrity when in most places it takes more identification to buy a bottle of wine or a six-pack of beer than it does to vote? With so much now in question about the integrity of the election process, it is hard to fathom a principled reason for opposition to laws designed to ensure election integrity, such as requiring proof of identity to vote. Only 36 states require such proof, and many of those do not require a photo ID. Voter-identification opponents have time and again fought legislation to put such laws into place and filed suits challenging voter-ID requirements that do get enacted.
Political activists can exploit these shortcomings. In Georgia, for example, Democrats successfully sued to lower the standard of review of mailed ballots. Inexplicably, the state’s Republican secretary of state went along with their proposal to allow just one person to match signatures and accept mailed ballots, but to require a majority of a three-person review panel to reject such a ballot. Even then, a cure process for rejected mailed ballots requires outreach to the voter to seek to correct any balloting error. Given a choice between simply accepting a signature, on one hand, and on the other, going through a bureaucratic maze of procedure to reject it, what should one expect the default to be? That change was put in place for the 2020 election and, unsurprisingly, rejection rates for mailed ballots fell precipitously statewide compared with 2016. Did that change the outcome of the election? We will never know, and that is the problem.
Ensuring election integrity requires at least four basic elements: (1) equal opportunity for all eligible voters to participate in voting; (2) establishing and adhering to rules and procedures designed to render the voting process free from corruption and fraud; (3) providing the means for identifying and correcting mistakes by election officials; and (4) providing a level of transparency throughout the process that results in uncompromising public confidence. In 2020, the first of these elements — access to the vote — seems to have overridden the equal importance of the other elements of election integrity.
Mail balloting is an invitation to fraud, corruption, and error because the means to safeguard it in each of these areas is weak or non-existent. A closer look at the use of signature matching to verify the validity of mailed ballots discloses its shortcomings. Election officials — often under great pressure to deliver tabulations quickly — take a brief look at signatures for comparison and then separate the voted ballot from its transmission envelope. Apart from the fact that real signature comparison is an inexact science wherein experts in court regularly disagree, how close and precise a review do we think an election clerk can provide? A Pennsylvania court disallowed even checking signatures because, according to a Wall Street Journal report: “Such a requirement, the judge said, could burden voters’ rights because state election officials aren’t trained in handwriting analysis and there is no process by which voters could fix any alleged problems with their ballots.” In other words, if the tools on hand can’t reliably check validation, just skip validation completely! Even where rudimentary examination does take place, different examiners apply wildly different standards or operate under instructions that can vary widely from jurisdiction to jurisdiction. That may present equal-protection-of-law issues. In short, the signature-verification process can be so loose that it makes the 2000 recount process of holding punch-card ballots up to a light in search of a dimpled chad look like scientific inquiry compared with the maybe-it-does/maybe-it-doesn’t signature-matching regime.
Sending mail ballots to every registered voter, a practice that dramatically increased in this election cycle, is a clear invitation to fraud, simply because we know the voting rolls are full of people who are not entitled to vote because they have died or moved or are otherwise ineligible. Suppose that five ballots arrive at a household whose former residents have gone out of state without asking to be stricken from the rolls (who ever does that?). It would take almost no effort for a politically motivated current resident to vote those ballots. This is not merely hypothetical; just last year North Carolina invalidated an entire congressional election and ordered a new one because of findings of absentee-ballot fraud committed to favor a Republican. The investigation in that case revealed that political workers forged the required witness signatures. These fraudulent votes were accepted and counted in the normal course. Other examples of the potential for fraud and corruption in mail-in balloting are more abundant than the space here can accommodate.
But what of the constant refrain — including in the most recent election cycle — that no evidence of widespread fraud that could have affected the outcome has been found and produced? That is the equivalent of claiming that because no evidence of a murder has been found, the body at hand is not dead. As with any corrupt scheme, proving election fraud requires time: first to investigate, then to gather proof, then to produce the relevant information in a forum that can provide a remedy. Election tabulation and certification cycles move much too fast to accommodate the evidence-gathering necessary to establish a credible case of election fraud. Even if evidence can be found to show that invalid votes were included in the count, there is little available in the way of a remedy when the valid and invalid votes are already commingled.
Can we nonetheless have elections with sufficient integrity to provide confidence in the result? The answer is: We must, because we cannot afford to have it otherwise. Integrity, especially with mailed ballots, must be built into the process on the front end of voting procedures. Massing lawyers for post-election litigation is not nearly as effective as amassing support to establish voting processes with procedural integrity before any vote is cast.
For too long we have accepted election imperfections because most of the time, elections have not been close enough for intentional wrongdoing and/or errors to make a difference. Now, with the dramatic expansion of mail voting combined with a sharply divided electorate, our elections are becoming less transparent and reliable. The United States, through both government and NGOs, spends millions trying to foster honest elections in ethically challenged parts of the world, but now it is high time to get our own house in order.
That process could start with non-politicized inquiries at the state level into how mailed ballots and other parts of the states’ election systems functioned in the 2020 election. To facilitate such an inquiry, the documents necessary to reconstruct the process, including ballot mailers, must be preserved. Ballot mailers can be independently audited to determine if they conform to state election-law requirements to be received as valid votes. It is not necessary to check every mailer in every state; there are standard ways to conduct a more limited inquiry using statistically appropriate sampling that can yield insight into and understanding of how the mailed-ballot system functioned, for good or ill. The Civil Rights Division of the U.S. Justice Department has considerable experience conducting “pattern and practice” investigations of state and local governments to address civil-rights concerns. Why not apply those methods to looking at voting procedures in selected jurisdictions? An invalid vote being cast and counted is just as much an affront to civil rights as a valid vote cast aside or prevented from being cast at all.
Such efforts can help identify where controls necessary to enhance the integrity of the election process are lacking. It then falls to state legislatures to close gaps, improve controls, and provide the resources needed to implement change. The first fix, however, must focus on mailed-ballot verification, because current methods are inadequate, and better ways are available. Modern technology could clearly play a role. For example, biometric identification of voters and ballots, which could be accomplished remotely as necessary, could clean up a number of flaws in the current process.
Whatever the path to true reform for greater election integrity, those who currently have stewardship of one of the nation’s most fundamental functions of democracy need to get the job done, so we can put to rest the current rampant doubts about the integrity of our elections process. The mobs we need are those casting votes, including by mail if necessary, in electoral systems that provide maximum assurance of election integrity.