Nate Persily is a professor of law at Stanford University who works in voting rights and campaign finance. He’s familiar with the myriad flaws in our electoral system, and he’s often appointed by courts to resolve local redistricting controversies. Right now, he’s concerned about a force that may completely break the 2020 presidential election: the COVID-19 pandemic. Persily warns that our elections process as it stands is not ready for the public health risks and disruptions to come from the coronavirus. There are steps we can take to ensure a safe and fair election, but we need to start taking them now.
I spoke to Persily on Tuesday’s episode of What Next about how the coronavirus stands to affect our voting processes and what needs to change come November. Our conversation has been edited and condensed for clarity.
Mary Harris: Last week, Ohio delayed its primaries due to health concerns. Can you describe what happened for people who may not have followed it closely?
Nate Persily: It was a sort of complicated legal drama involving the governor, the secretary of state, the state’s highest public health officials, judges, and the state Supreme Court. There was a dispute between different factions as to whether the election was going to go forward. Ultimately, the health director said: Look, I’m banning any gatherings of over 50 people. That includes elections. The state has delayed the election by over a month and a half, and now it’s collecting absentee ballots and trying to figure out what to do when the election does run.
We diffuse power throughout our system when it comes to administering elections. It’s a problem generally that we don’t have, say, a national election authority in the United States. Instead, we have over 8,000 jurisdictions running our elections. So at the state level, there’s a question as to who’s in charge. And we’ve never had a situation where a state’s health director ends up being in charge of an election, where they say you may not vote because it could be dangerous to your health.
Is this going to be what happens in November, each state choosing on its own how it wants to proceed?
The general election has certain rules that primaries don’t. One of the most important rules is a federal statute that mandates what time and what day the election will take place. It’s not something, for example, the president could change on his own. But it is still the case that the states have great power to decide how elections are going to be conducted, whether they will be conducted by mail, and how early voting will take place. There is a risk that, when it comes to the extreme measures that need to be taken to confront the pandemic, you’re going to get high variation between different states.
It seems like, in this new landscape, running elections like business as usual is not going to work. Having so many people show up in person is too dangerous, not just for voters but for polling workers, who tend to be older and might not want to show up. That means some polling places may have to close down, and voters will be chaotically shuffled to new locations.
Not only that, but it affects where you may locate these polling places. A substantial share of polling places are located in senior facilities, places like nursing homes. This might not be an election where you would like 700,000 people in a single day going through some of these facilities. The same is true with schools.
So this causes a crisis—for poll workers finding enough people to man the polls as well as locations suitable for voting under these conditions, and then for voter turnout generally.
You published these 10 recommendations to ensure a healthy and trustworthy election. When I read it, it felt to me like it was like one recommendation, which is that we all need to be thinking about voting by mail. Why does that seem like the right solution to you?
We have to move more voters to mail because we’re not going to have the number of polling places needed for all of them. If we have mail balloting, we don’t have to worry about poll worker health, scared voters, or polling place consolidation. Vote by mail is something that we have done successfully in the U.S.: Places like Washington, Oregon, and Colorado basically cast all of their votes by mail. But states like Wisconsin and New Hampshire have only had roughly 5 percent of their votes cast by mail because they’ve required excuses for absentee ballots. Overall, the election administration regime is not prepared for this level of mail voting.
Moving to vote by mail on the regular seems like it would be challenging in normal circumstances. How long would this take if there were no coronavirus?
You have to start preparing roughly six months in advance. That means we have about a month right now to make the critical decisions on whether a state or jurisdiction is going to move to vote by mail. They cannot just flick a switch and say they’re going to mail ballots to everyone. It’s a lot more complicated than that, partly because of how decentralized our electoral system is, partly because of the number of ballots these jurisdictions are dealing with, and partly because of the equipment that’s needed, like certain types of scanners to count mailed ballots.
The first question is, are people registered to vote by mail? Assuming that you have everyone who’s going to be voting by mail, you have to have a reliable database of addresses to get them their ballots. And there are large swaths of people who do not live in reliable addresses. Because of the dislocation caused by the virus, you’re going to have people living and staying in different locations than they otherwise would be.
The signatures on absentee ballots also become an important part of verification. Once a ballot is received by a jurisdiction, administrators look at the signature they have on file and verify whether that signature matches the ballot’s. A lot of people also don’t have familiar signatures, so not all of them are going to match. And if you try to verify all these signatures that don’t match what you have on the rolls, it could take several days to report election results. That’s something we really do need to be prepared for: the possibility that we will not know a winner on election night.
I want to talk about who might be left behind with a big voting switch. In Georgia it’s been found that minorities are more often flagged as having signatures that don’t match. Plus, people are moving: Young people are moving back in with their parents, and older people are moving in with their adult children. And then there are people who have always faced a struggle to vote, like Native American populations who may not have a street address or may have a P.O. Box. Does this trouble you at all?
It does. There are all kinds of biases that one sees in shifts between different ways of voting. In states that offer vote by mail as an option, it’s predominantly whiter and older folks who are willing to do so. You see a racial bias in the data on who chooses to vote by mail, and a lot of this has to do with people’s lack of trust in the mail service to deliver the ballot. So one thing that is critical for this election is making sure that voters, whatever their race or party affiliation, believe there’s an equal likelihood their ballots are going to be counted.
What would it take to get this done? We have Congress considering this massive stimulus right now, and I know it’s considering support for this vote-by-mail measure.
It will cost between $2 billion and $3 billion to roll out a robust vote-by-mail program for the fall. It requires equipment, and it requires more poll workers.
But vote by mail isn’t the only solution. There are going to be millions, maybe tens of millions of people who are not going to want to vote by mail. So we also need to construct polling places in such a way that people feel safe when they go to vote.
What would that look like?
That requires maintaining social distancing in polling places. You could have people voting from their car or voting from the street. You could also make sure that polling places are in very large facilities where there’s enough distance between ballot machines that no one will be too close to one another. You’re going to have poll workers with masks on, making sure they don’t end up being infected by the swath of voters coming toward them. And they need to make sure there aren’t long, congregated lines on Election Day—that people are spaced out so they’re not within 6 feet of each other.
The problem is if you want to deal with this problem in November, you have to start dealing with it in June. Plus, it may well be that the contagion recedes over the summer but comes back with a vengeance just around Election Day. So the worst-case scenario is that people and election authorities don’t take proper precautions, and then we are stuck with an election that can’t be run because of the rising contagion.
The basics of trying to get jurisdictions on the same page as to how to manage this election are difficult enough. But if we dedicate the effort and the resources, we can do it. It’s not as if we’re trying to invent a new technology here or perfect the voting machine. There are states that are going to run this election without problems, and we need to try to take best practices from those states and bring them to states that are not doing it. But that requires federal resources. We’ll need billions of dollars to pull this off, and that should be part of any stimulus package that Congress passes.
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