MORE FROM
THE BATTLE
FOR THE
CONSTITUTION
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JOSH BLACKMAN
IDEAS
Vote-by-Mail Can Save the 2020
Election
It’s a time-tested and straightforward solution, and the time to plan
for it is now.
MARCH 27, 2020
Ronald J.
Krotoszynski, Jr.
John S. Stone Chair at the
University of Alabama
School of Law
PRINT COLLECTOR / HULTON ARCHIVE / GETTY / KATIE MARTIN /
THE ATLANTIC
Even in ordinary times, voting is
hard for many Americans,
requiring them to wait in long
lines and, in some cases, forgo
wages as a result. Of course, these
are not ordinary times. Today,
and possibly even this November,
the potential cost of casting a
ballot in person on Election Day
could be considerably higher,
given that crowds and shared
surfaces (such as the interface of
an electronic voting machine)
present perfect environments for
spreading the coronavirus.
Te election is too important to
let fall prey to this virus.
Americans must ensure that the
country’s democratic process
moves forward as scheduled. And
there is one time-tested and
straightforward way to do that:
nationwide vote by mail.
[ Ken Harbaugh: Te vote must go
on ]
Te question of expanding access
to voting by mail should not be
left to the states to decide. Te
country needs a federal law that
ensures all citizens may exercise
their right to vote, without
having to jeopardize their health.
Congress should swiftly pass a
law that mandates the option of
early voting by mail in all 50
states and the District of
Columbia.
A ready-to-hand legislative
vehicle already exists for
achieving this. In pending relief
legislation, the Senate has
proposed providing states with
more than $400 million in
assistance to help support the
2020 general election, which
could cover expenses for rolling
out and running voting by mail,
in addition to monies for more
polling places, poll workers, and
voting machines. But this is not
enough. Financial incentives,
although important, are not the
same as a direct mandate to make
voting by mail available to all
citizens who wish to use it.
Congress need not ban in-person
voting absolutely, but should
merely require that a mail-in
ballot automatically be sent to
each and every registered voter
(regardless of whether a voter
afrmatively requests one). It
would then be up to individual
voters either to use that mail-in
ballot or to vote in person on
Election Day.
Absent a clear and unequivocal
federal mandate, some
jurisdictions—those that most
want to suppress the vote—will
still require in-person voting and
simply not take the subsidy for
mail-in voting systems. Te
arguments against providing
voting by mail are easy to
anticipate: We must check photo
identifcation to avoid voter
fraud. Mail-in ballots are not
secure—people will steal them
and mail them in, stufng the
ballot box. We do not have the
time or capability to alter our
election procedures in time for
November 3.
Tese arguments are specious,
and Congress should reject them.
If serious, systematic problems
with voting by mail existed, they
would have already presented in
Washington, Oregon, and
California, where the option is
available to a combined 50
million residents. (Oregon has
used mail-in voting for more
than 20 years.) No widespread
issues, such as ballot theft or
fraud, have arisen in these
jurisdictions with respect to
mailing in physical ballots.
Indeed, Washington has
experienced several very close
elections, including the 2004
gubernatorial race, in which the
Democrat, Christine Gregoire,
defeated the Republican, Dino
Rossi, by a margin of 129 votes
(out of 2.8 million cast). Rossi’s
campaign, which certainly had
good cause to be disappointed
with this outcome, never
suggested that voting by mail
compromised the fairness or
integrity of the election. In this
sense, these states have served as
“laboratories of democracy,†to
use Justice Louis Brandeis’s
wonderful turn of phrase.
Accordingly, Americans do not
have to guess about whether
mail-in voting works; it clearly
does. (Corporations and credit
unions also routinely use mail-in
voting for board elections
without problem.)
Te same cannot be said (at least
not yet) for smartphone–based
voting. Earlier this year, Seattle
used app-based voting for
elections to seats on the King
County Conservation District
(an obscure administrative
agency that has sufered very low
levels of voter participation for its
elections). Computer-security
experts expressed grave
misgivings about the safety and
security of this voting process,
and serious problems also arose
with an app used to report vote
totals in the Iowa and Nevada
caucuses. One day app-based
voting might be a viable option
for conducting a national
election, but that day has not yet
arrived.
[ Adav Noti: Te chaos coming for
the U.S. election ]
To be sure, both legally and
historically, the states take
primary responsibility for
running elections (including for
seats in the U.S. House and
Senate). Tat said, the Framers
gave Congress the fnal say-so
regarding congressional elections.
Te Constitution provides that
“the Times, Places and Manner
of holding Elections for Senators
and Representatives, shall be
prescribed in each State by the
Legislature thereof.†Te same
clause also adds a crucial caveat:
“But the Congress may at any
time by Law make or alter such
Regulations.†Tus, Congress has
the power to impose uniform
national rules, including for
voting procedures (at least with
respect to elections for House
and Senate seats.)
Congress has in the past used this
power to make it easier to register
and vote. In 1993, for example,
Congress enacted and President
Bill Clinton signed the National
Voter Registration Act,
commonly known as the “Motor
Voter Act,†which requires states
to ofer voter registration to
citizens when they appear at the
DMV to obtain a driver’s license.
A recalcitrant state could override
the federal mandate and require
in-person voting for local and
state elections and for
presidential electors, because
Congress does not enjoy explicit
constitutional authority to set the
rules for these contests. (Voters
technically do not vote directly
for presidential candidates, but
rather for a slate of presidentialelector nominees pledged to
support a particular candidate,
and the Constitution gives state
legislatures carte-blanche control
over the selection of electors.)
Precedent at least suggests that
no state will do this: Under the
Motor Voter Act, for example,
states have not adopted dualregistration systems; the “motor
voter†registration is good for all
elections within the jurisdiction.
What is more, governors of both
political parties have already
rescheduled presidential
primaries to mitigate the virus’s
spread. Mike DeWine, the
Republican governor of Ohio,
took extraordinary steps to
postpone the state’s primary, as
did John Bel Edwards, the
Democractic governor of
Louisiana. It seems highly
unlikely that a governor who
would stop an election by fat to
promote public health would
object to providing mail-in
general-election balloting for the
very same reason.
As a more basic matter, a
national system of voting by mail
would make it easier for ordinary
Americans to vote. Tey would
no longer have to queue in lines
for hours in overcrowded urban
precincts in places such as
Cleveland, Detroit, and Miami.
Tey could vote from the
comfort—and safety—of their
own homes.
With more than six months until
the election, creating and
implementing such a system
should not be difcult. If
necessary, the Department of
Commerce could make its census
database available to state
election ofces that might face
gaps in voter information.
[ Ibram X. Kendi: Te other swing
voter ]
Te outcome of allowing voteby-mail is difcult to predict.
Many of the voters most likely to
stay home this November—older
voters in retirement communities
such as Te Villages near
Orlando, Florida, who are at
high risk of getting COVID-19
—tend to support the GOP.
Because the health risk could
easily suppress GOP voter
turnout, Republican members of
Congress should see a political
reason—to say nothing of a
moral one—to embrace a voteby-mail mandate. As for the cost,
ensuring that America’s national
election takes place on a timely
basis and permits as many
citizens as possible to vote is,
quite literally, an investment in
democracy itself. What could be
more essential to a nation whose
founding document credits “We
the People†with the very
existence of the federal
government?
America’s governing institutions
derive their legitimacy from this
imprimatur. To preserve that
legitimacy in an era of an
airborne pathogen that causes
serious illness and death, on a
seemingly random basis, citizens
should not be required to
physically go to a polling place in
order to exercise their franchise.
Luckily, they don’t need to, if
only Congress would act.
Tis story is part of the project “Te
Battle for the Constitution,†in
partnership with the National
Constitution Center.
We want to hear what you think
about this article. Submit a letter
to the editor or write to
[email protected].
You’re reading The Atlantic’s free coro
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