LDF Position Overview: The COVID-19 public health crisis has led to a dramatic increase in the demand for mail voting. While Lawyers Democracy Fund (LDF) asserts that the best and most secure way to cast a ballot is in person at a polling location, LDF understands the necessity for certain voters to have the option to vote by mail. However, when states and jurisdictions attempt to increase the volume of mail voting without proper election infrastructure or without maintaining important election integrity safeguards, LDF sees no greater threat to safe, honest, and secure elections.
Not All Americans Trust Mail Voting: Americans on both sides of the aisle are not convinced about voting by mail. Although 71% of Americans support early “no-excuse” voting by mail as an option available to voters, 65% oppose voting by mail being the only method of casting their ballots. In the 2018 election, roughly 73% of voters cast their ballots in person on or before Election Day, while only 26% of voters voted by mail. Further, mail voting is trusted less by minority voters who prefer to vote in person at rates twice that of whites.
The Voter Should Decide How to Vote: Voters should determine for themselves how to cast their ballots, not the state. Especially during the COVID-19 pandemic, states should ensure that voters have realistic options to vote in person for voters who prefer in-person voting.
Voters Should Request Mail Ballots: States should allow voters to request an absentee ballot instead of automatically mailing a ballot to every voter, for doing so respects voter autonomy and prevents log-jamming voting infrastructure. Further, when states automatically send ballots to every voter, hundreds of thousands of ballots sit unsupervised in peoples’ mailboxes, which increases the opportunity for fraud to occur because of a lack of oversight in safeguarding these ballots. Be it a candidate, official, or an individual committing the fraud, ballots can be taken from mailboxes, thrown away, or moved. Letting the voter decide how they will vote is a significant step toward limiting these risks.
Mail Voting Takes a Long Time to Implement: It takes significant time to expand mail voting, and any system hastily implemented will lead to disastrous results. Washington switched to all-mail elections in 2011 and is still troubleshooting issues that come with high volumes of mail ballots almost a decade later. Expanded or universal mail voting requires different equipment, staffing, training, and physical and cyber security measures than an in-person voting system, and successful mail voting systems require aggressive voter registration list accuracy maintenance. It cannot be safely and securely implemented without adequate time.
Increased Administrative Errors: Voting in person at a polling location decreases the chances of a ballot getting thrown out for simple errors. Nationwide, hundreds of thousands of mail ballots were rejected in 2018 because of mail delays, minor technical defects, and voter errors – issues that do not occur with in-person voting. Mail ballots are three times as likely to be rejected for various reasons than ballots cast in person, making voting in person a far more effective method of voting to ensure one’s vote actually counts.
Decreased Election Security: Mail voting has the potential to hinder election fairness and security.
- Verification and Certification. Strong verification and certification measures for mail ballots are essential to the honesty and fairness of the election. Without these measures, election officials have no way to know that a person’s returned ballot is actually the voter’s and not a result of fraud.
- Voter List Maintenance. Without updated voter lists, mail ballots are sent to inactive voters, deceased voters, and voters that have moved away. Not only is this an irresponsible expenditure of taxpayer dollars, but it diminishes the integrity of the election when mail ballots are improperly sent to ineligible voters or to the wrong address.
- Ballot Tracking. Without an effective means to track mail ballots, voters cannot verify that a ballot is sent, delivered, returned, and counted. Tracking systems for ballots are vital to prevent bad actors from intercepting ballots and further allow voters to make sure their ballot is tabulated.
- Chain of Custody. Paramount is the need for strict chain of custody regulations in mail voting systems since mail ballots travel outside of the supervision of election officials. Without proper chain of custody procedures, ballots may be lost, stolen, or intercepted. Further, bipartisan supervision is needed during the ballot counting process to foster integrity.
- Ballot Storage. Because mail ballots are often returned before Election Day, meaningful security measures are necessary to make sure these ballots are physically protected and stored safely. This includes the need for personnel and security cameras at storage facilities and ballot drop boxes.
- Penalties for Malfeasance. Sharp penalties for tampering, hindering, or influencing the fate of mail ballots go a long way to prevent fraud and are important to the effectiveness of voter integrity laws.
Increased Voter Coercion: Voting by mail creates greater opportunity for bad actors to influence how electors cast their vote since the “secrecy of the ballot box” does not exist as it does at a polling location. Voters might feel pressured to cast their ballot a certain way if someone is counseling them on how to vote or whether or not to vote at all. These decisions need to be left completely to the voter like when voters cast their ballots in person.
Ballot Harvesting Undermines Integrity: Laws that limit ballot harvesting are vital to the integrity of the election – they ensure the voter is not coerced into voting or influenced to vote in any particular way. Further, limiting ballot harvesting does well to make sure third parties do not favor ballots from one set of voters over another, returning some ballots and “losing” others. Additionally, asymptomatic ballot harvesters could potentially spread COVID-19 as they visit numerous houses to collect ballots.
Increased Voter Errors: Voters who cast their ballot by mail do so away from the assistance of election officials, which increases the opportunity for these voters to make errors that are fatal to their ballots being counted. At least 30% of the mail ballots rejected in 2018 were disqualified due to an error on the voter’s part, such as the voter’s signature not matching, lacking a signature, or other failed procedure. These errors do not occur when voters cast their ballot in-person. Further, mail ballots from younger, minority, and first-time voters are most likely to be thrown out because of simple errors. Because these ballots are delivered through the postal system, it can be a challenge for voters to quickly “cure” or correct their ballot for it to be counted, and many states do not have any procedure for voters to correct errors.
Increased Voter Disenfranchisement: Due to the mail ballots of minorities being twice as likely to be rejected than mail ballots of non-minorities, there exists the potential for voter disenfranchisement in mail voting systems. Further, a lack of uniformity in the mail delivery infrastructure across jurisdictions means that sending and returning mail ballots may be more difficult for voters in rural areas or for voters on Native American reservations to receive and return their ballots on time. The ballot of every eligible voter should count, and mail voting has the potential to undermine this principle.
Severely Delayed Election Results: The more voters opt to vote by mail, the more difficult it becomes for election officials to deliver timely results. For states with a significant population of electors voting by mail, it can take anywhere from a few days to several weeks after Election Day to certify election results. Delayed election results can undermine voter confidence in the integrity of the election, especially when the leading candidate on Election Night loses days after the polls are closed.
Decreased Voter Confidence: When voters cast their ballot by mail, they are less confident that their votes are counted and tabulated correctly compared to voting in-person. Over a quarter of people who vote by mail return their ballots by hand rather than trusting the mail system to return their ballots. Further, only 11% of black voters cast their ballot by mail in the 2018 election, which is half the percentage of whites. The distrust minorities have toward voting by mail is important to note. Lastly, half of Americans believe that mail voting leads to greater fraud, which impinges upon voter confidence in the honesty and fairness of elections.
 See Elections in America: Concerns Over Security, Divisions Over Expanding Access to Voting, Pew Research Center (Oct. 29, 2018), available at: https://www.people-press.org/2018/10/29/elections-in-america-concerns-over-security-divisions-over-expanding-access-to-voting/.
 Election Administration and Voting Survey, U.S. Election Assistance Commission (2018), available at: https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf.
 David Becker, Mail-in Ballots to Avoid Coronavirus? Yes, but Here’s how to Minimize Chaos and Unfairness., the Washington Post (Mar. 18, 2020), available at:https://www.washingtonpost.com/opinions/2020/03/18/mail-in-ballots-avoid-coronavirus-yes-heres-how-minimize-chaos-unfairness/.
 Donna Gordon Blankinship, Washington’s Successful Vote-by-Mail System Wasn’t Built Overnight, Crosscut (Apr. 15, 2020), available at: https://crosscut.com/2020/04/washingtons-successful-vote-mail-system-wasnt-built-overnight.
 See supra note 2.
 Enrijeta Shino et. al, Here’s the Problem with Mail-in Ballots: They Might not be Counted., the Washington Post (May 21, 2020), available at:https://www.washingtonpost.com/politics/2020/05/21/heres-problem-with-mail-in-ballots-they-might-not-be-counted/.
 See supra note 2.
 See supra note 6.
 John Witesides, Black Voters Don’t Trust Mail Ballots. That’s a Problem for Democrats, Reuters (May 29, 2020), available at:
 Charles Stewart, 2016 Survey of the Performance of American Elections: Final Report, at 4, available at https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/Y38VIQ.
 See supra note 9.
 Mohamed Younis, Most Americans Favor Voting by Mail as Option in November, Gallup (May 12, 2020), available at: https://news.gallup.com/poll/310586/americans-favor-voting-mail-option-november.aspx.