NULR of Note

As the world turns to strategies to stave off the worst effects of the novel coronavirus, now is the time to double down on our commitment to democracy. States around the country are pushing back primary and runoff elections in the hope that, if held at a later time, election procedures can return to the “old normal”. While states can postpone their primaries, they cannot postpone the November 2020 general election.

As COVID-19 becomes a leading cause of death in the U.S., voters will be wary to head to the polls. And, even if the viral effects were to subside, the effects of social distancing will persist in discouraging large-crowd, in-person voting for some time. What’s more, health experts warn that a second wave of the coronavirus is likely to resurface in the United States around October or November 2020. The disenfranchising effect could be staggering if Congress, state, and local leaders don’t act now.

Universal vote-by-mail has emerged as the top policy solution, but states must implement the necessary safeguards to make sure all ballots are counted while also maximizing security and integrity. Unlike in-person voting, the risk of transmission of COVID-19 by mail is nearly nonexistent. Contrary to the warnings of some political officials, voter fraud in vote-by-mail is likely to represent no more than a few thousandths of a percent of votes cast, is generally committed accidentally, and is easily detectable. Public health and security concerns simply aren’t legitimate reasons to object to vote-by-mail.

Indeed, while vote-by-mail is good policy in the best of times, now we have no choice. Yet, constructing a fair and safe vote-by-mail system also demands careful consideration of the available best practices. A thorough review of vote-by-mail options across the country, academic research, and legal decisions on access to voting informed the UCLA Voting Rights Project’s (VRP) nine-point policy report published just weeks ago in response to the pandemic. The report describes how to best protect voters’ health and political voice in November.

First, states must increase access to voter registration by sending all eligible voters a registration form or providing an opportunity to register online. Ballots and envelopes should be uniform in design to catch voters’ attention, be available in a host of languages, and include a paid postage for return. States should implement secure, ADA compliant, and highly visible drop-boxes in current planned polling locations and new drop-box locations like schools, public buildings, and other highly trafficked areas.

If a voter forgets to sign the ballot envelope, or if there is any other mistake, voters should be notified through telephone, text, or email that their ballot has been rejected within seventy-two hours, and those efforts should be recorded. Means of curing ballot discrepancies should include identity verification online or by phone or submission of a replacement ballot and return envelope. Curing periods should last for twenty-one days after election day. Some states already provide similar measures.

Of course, not everyone is able to vote by mail, and for others, particularly African-Americans, voting in-person is a hard-won civic tradition. We should minimize demand for in-person voting while ensuring that the remaining in-person polling locations are structured to responsibly handle crowds of voters and protect the guardians of our democracy, poll workers. These measures should include maximizing the number of polling machines, providing gloves and cleaning supplies to election workers and voters, modifying voting hours for at-risk populations, and classifying election related workers and volunteers as emergency personnel. Just as importantly, states must provide early voting to reduce crowds on election day.

Changing voting procedures necessitates clear communication with voters. In states for which a universal vote-by-mail scheme would be a novelty, states should educate voters about the new system through media outreach. States can even work with USPS to help deliver a notice to register to vote, update voter registration in advance, and provide a reminder to keep addresses current.

Congress has already begun to respond to the need for universal vote-by-mail. While the latest proposed COVID-19 House response bill and Senator Kamala Harris’s VoteSafe Act of 2020 follows many of UCLA VRP’s recommendations, both fall short in the way they address—or fail to address—signature matching as a method to verify voter identity on mail-in ballots. The House bill mandates signature verification to confirm the identity of voters mailing in their ballots; the VoteSafe Act of 2020 contains no provision that requires states to provide an alternative to signature matching verification.

Signature matching involves election officials comparing signatures on file from a voter’s registration or another government record to the signature on their ballot, rejecting the ballot at an official’s discretion. But these election officials are often untrained in forensic handwriting and are rarely given any verification guidelines, so voters can have their ballots rejected arbitrarily. After all, signatures will naturally vary between signings. This is especially true if a state is trying to match an in-person signature to one signed using a computer mouse pad during online voter registration, a practice which the House bill approves. Ballot rejection from signature matching isn’t just arbitrary—it’s also racially disproportionate. Research has documented that strict signature matching guides can disenfranchise young and minority citizens who cast valid ballots. This must be corrected, and our policy recommendations offer a path forward.

Any bill that calls for vote-by-mail must provide reasonable alternatives to signature verification. These include some of the same methods voters already use to verify their identity at the polls and elsewhere, like providing their drivers’ license, passport number, a sworn statement, fingerprint, or utility bill. And because the curing process can take time, the VoteSafe Act’s failure to mandate a fixed time period for voters to be able to cure their ballots grants states discretion to cast away ballots before voters can cure them. Vote-by-mail does not provide an opportunity for voters to exercise their rights if their votes are not ultimately counted.

Any vote-by-mail scheme should include these measures if it is to be safe, secure, and equitable. Given the urgency and importance of the sensible administration of the 2020 general election, states and Congress must act immediately. Vote-by-mail is no panacea, but it’s an important step toward preserving the right to vote amid a national emergency. If our leaders act on these recommendations, it can be even better.

Sonni Waknin and Michael Cohen are Legal Fellows at the UCLA Voting Rights Project. UCLA Voting Rights Project is directed by Matt Barreto, Ph.D., Professor of Political Science and Chicana/o Studies and Chad Dunn, J.D., Director of Litigation, Luskin School of Public Affairs. The UCLA Voting Rights Project continues to monitor access to the ballot amid COVID-19 and is available as a resource for any party concerned with preserving the right to vote. Readers can learn more about the Project here. They can find the Project’s vote-by-mail publications here.