Nevada’s new automatic mail-in voting law is only the latest ballot systems change that has the potential to complicate the November election.
With less than three months until the election, the rapid changes are likely to prompt legal battles and election delays that could not only frustrate the public but undermine public confidence in the process.
In the wake of fears that the coronavirus pandemic could endanger public health at the polls, Democratic Nevada Gov. Steve Sisolak signed a bill into law on Monday that dramatically expands mail-in voting in the state, including sending every registered voter a mail-in ballot, rather than requiring voters to request one.
The Trump campaign filed a lawsuit on Wednesday in hopes of stopping the legislation, arguing that it is unconstitutional.
Part of the concern with mail-in voting has to do with its potential for voter fraud, which has historically been a statistically insignificant problem.
“I’m particularly concerned that there’s been the push for vote-by-mail with the demand that it be automatic, so ballots get sent automatically to all voter registrations, and then you do away with election safeguards that help to combat fraud,” said Jason Snead, the executive director of Honest Elections. “What Nevada did was not only will they be automatically mailing ballots, but they will also be legalizing vote harvesting.”
“Vote harvesting” is the practice of allowing individuals other than the voter to fill out and return his or her ballot. The laws have varying levels of flexibility from state to state, but the new Nevada law allows voters to designate any person to return the ballot.
The practice led to one of the most well-known cases of voter fraud when a Republican operative turned in so many false ballots for a North Carolina congressional candidate that the election had to be done over.
But a potentially bigger issue is whether elections administrators can handle the rapid changes, and if they can’t, whether legal battles over which mail-in ballots to count prompt a constitutional crisis.
“I don’t want to be melodramatic,” Snead said. But he offered a metaphor for the impact of the vote-by-mail changes: “One of the things that folks don’t know about the Titanic is that they knew they were sailing into an area of the ocean with icebergs. They knew that, and they did it anyway. And they sailed at full speed, and they were absolutely confident that they could manage the crisis if anything happens, and we all know that they hit an iceberg and sank.”
Primary elections have already exposed the challenges of rapid vote-by-mail implementation.
Former Democratic Georgia state Rep. Stacey Abrams said that her primary ballot arrived with the return envelope sealed. Democratic Georgia Senate candidate Jon Ossoff didn’t receive his primary ballot in time to vote for himself by mail.
In a press briefing on Tuesday, press secretary Kayleigh McEnany called attention to the challenges of mail-in voting by pointing to New York primary races, where the winner in some races could not be determined weeks later. “It is day 42 of the botched New York City primary, where still there is no election result in one congressional race,” she said.
Snead brought up Washington, D.C., which attempted ballots to every registered voter for the primary election. “They had to resort to emailing PDF of ballots to voters so that they would be able to vote,” he said.
Other challenges, such as deciding whether to count ballots that arrive after Election Day or elections administrators deciding if a mail-in ballot envelope signature matches that of the voter, could lead to lawsuits that divide the country.
“If states do adopt this sort of rush vote-by-mail model, then there is a serious risk of post-election litigation, particularly if there are tight races not just president, but any race — for House, Senate, governors,” Snead said.
And the result of that litigation could cast doubts about the U.S. electoral system, made even more consequential by rampant polarization.
“The ultimate goal of an election is to encourage people to believe in the democratic process, to show people that, ‘Here’s the rules, here’s the process, we follow the rules. Everything was transparent,’” Snead said. “If the trust breaks down, and all you’ve got is the pain of loss and the feeling that it was stolen from you, at this particular juncture in our politics, that could be a very, very damaging thing.”
The vast majority of the electorate will have the option to vote by mail this November, due, in part, to states that have changed their rules due to the coronavirus pandemic. And two key swing states changed their rules to send mail ballot applications, not actual ballots, to voters automatically: Wisconsin and Michigan.
But so far, none of the six most-watched Electoral College swing states have gone so far as to send all voters a mail-in ballot automatically. In addition to Nevada, California, the District of Columbia, and Vermont changed this year to send voters ballots automatically.
But even at this late stage, that could change.
“There are other states that are looking at their election practices putting their plans forward right now,” Snead said. “I fully expect that we’re going to see at least a few more adopt this practice.”
