How to Hold an Election During a Pandemic

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S1: If you ask me personally to describe his job, he does the usual thing academics do.

S2: So I met a law professor at Stanford, also director of the Stanford Cyber Policy Center.

S1: But he gives you the full resumé. He works in voting rights, campaign finance. And then he gets to the good stuff.

S3: I’m often appointed by courts in particular to resolve redistricting controversies.

S4: You get this cool title like Special Master. A lot of the time, right?

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S5: That’s true. I’ve been a special master on several occasions.

S6: It’s not a title that wins me any credibility at home, but it’s definitely something that is not a title you get in your normal course of things. You know how I describe you when I’m if I had to describe what you do. I describe you as the election plumber, like the guy who goes into status with broken electoral systems and like tries to figure out what pipe is leaking. That’s good. Yes. I’ll I’ll I’ll use that. I wanted to call up the election plumber because his corona virus spreads across the country.

S7: There’s this one question I just keep asking myself, how are we all supposed to vote for president? And a few months.

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S8: A week ago, Nate was watching as primary voting stalled out in Ohio. After the governor ended up in a legal tug of war, Jake, while you’re there, will people be able to vote tomorrow?

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S9: Tanya, the short answer to that is no. Within the past hour, Ohio’s health commissioner had to weigh in at the last minute, make the final call. Some election workers say they got a robo call two minutes before they were scheduled to report to their voting location to set things up tonight. And that was at 7:00.

S10: You know, in this moment, everyone’s focused on people’s health, on the economy. And I feel like you are just waiting for this like other shoe to drop. Like you you’ve seen these partisan battles over the election play out. And you can kind of see over the horizon that maybe we’re not paying attention to this right now, but we’re about to get walloped as well.

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S5: But the shoes are already dropping with the primaries. What happened in Ohio last week as they were preparing for their presidential primaries was a harbinger of things to come.

S11: If what happened last week in some of these primary states happens in the fall, that we’re going to have real a real contested election as to who won and whether the process was fair.

S12: Today on the show, Nate’s going to explain the potential pitfalls of holding elections during a pandemic and how, despite the logistical nightmare, we could actually keep this cornerstone of democracy intact. I’m Mary Harris. You’re listening to what next. Stick with us.

S10: Can you describe a little bit what happened in Ohio for people who may not have followed it closely, may have been distracted by other things? I mean, were you following that closely?

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S5: Yes. Well, it was a sort of complicated legal drama involving the governor, the secretary of state, the state’s highest public health official county level judges, as well as the state Supreme Court. The long and the short of it is that there was a dispute between different factions as to whether the election was going to go forward. And it is sort of unclear directions being given by the court. And ultimately, the state’s public health officials said, look, I’m banning any gatherings of over 50 people. That includes elections. Right. Because polling places could end up having that. And so they basically just ended the election before it started. But it Helmy happened the night before. And you had folks in the county level sort of confused as to whether or not they were going to run the election the next day. And so they’ve been delayed the election by over a month and a half. And now they’ve been sort of collecting absentee ballots and they’re still trying to figure out what they’re going to do when they run the election as they’re currently planning.

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S10: It seemed to me and I wonder if you’d agree or disagree. It seems like a particularly American situation where you had a governor who wanted to do one thing. Then I’ll listen. There’s a lawsuit and then a judge who’s like, you can’t do that. And then there’s this work around where someone from the Department of Health all of a sudden comes in and is like, listen, we’re not going to have the election. Just seemed like, you know, it was sort of going back and forth, like which executive is in charge of this, really? And it’s like a who’s on first problem.

S5: Well, you’re right that, you know, we diffuse power throughout our system when it comes to administering elections. That’s true in a crisis like this, which exposes all of these vulnerabilities. But it’s a problem generally in that we don’t have, say, a national election authority in the United States. Instead, we we have over 8000 jurisdictions that are running our elections. You know, at the state level, there’s a question, as you said, as to who’s in charge. And we’ve never really had a situation where the state’s public health or officer ends up being the one in charge of an election. You know, you’re basically saying that you may not vote because it could be dangerous to your health.

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S10: I mean, my thought when what happened to Ohio happened was, is this going to be what happens in November? Like is it going to be each state choosing on their own, how they want to proceed, whether they want to delay, whether they want to, you know, run the show a different way?

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S5: Well, the general election has certain rules that the primaries don’t. And one of the most important rules is that there is a federal statute that mandates what time and what day the election will take place. That’s a creature of a federal statute. It’s not something, for example, that the president could change on his own. But it is still the case that the states have great power to decide, you know, how the election is going to be conducted and whether it will be conducted more by mail. You know how early voting will take place. But you’re right that there is a risk that when it comes to the extreme measures that need to be taken to confront the epidemic, that you’re going to get high variation between different states.

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S10: I kind of wonder if history offers any lessons here, like we keep talking about the 1918 flu pandemic and that was a national election year. I mean, was a midterm election not a presidential election? Do you know how it was dealt with back then?

S2: Well, it was dealt with as a normal election for the most part.

S4: And so everyone just show up and do it the normal way they did.

S2: But it was there was a drop in voter turnout, as you would expect. I mean, the pandemic back then was, you know, seen as just a really, really bad flu. Right. And so it was not treated with particular measures. Stay relevant to the election. But there really is no historical precedent for this. I mean, you can search in vain and try to find analogies to what we’re going through right now. But this is totally new terrain as far as I can tell.

S4: Nate says that in this new landscape, at least one thing’s for sure, running elections like business as usual is definitely not going to work. Having so many people show up in person is too dangerous and not just for voters, but for polling workers who tend to be older and might not want to come to work. That means some polling places may have to shut down and then voters would be chaotically shuffled to new locations.

S2: Not only that, but it affects where you may locate these polling places. A substantial share of polling places are located in these senior facilities, nursing homes and the like. And this might not be an election where you would like, you know, seven hundred thousand people in a single day going. Through some of these facilities. Same is true with schools.

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S13: Maybe you’d be concerned about having, you know, lots of sort of people from the surrounding population going into a school on Election Day and said this causes a crisis. But the pollworkers finding enough people to man the polls locations which will be suitable for voting under these conditions. And then, of course, voter turnout generally where you might have voters who are unwilling to show up if it’s under these conditions.

S4: I mean, you publish these 10 recommendations to ensure a healthy and trustworthy 20 20 election. But when I read it, it felt to me like it was like one recommendation, which is we all need to be thinking about voting by mail. Why does it seem like the right solution to you?

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S2: Well, it’s it’s just the one that we’re familiar with. There are many things that we could do if we had the luxury of time. But we have to move more voters to mail just because we’re not going to have the number of polling places that we need in order to to shut off the number of voters through it. And voting by mail is the healthiest option. If we have additional mail balloting, then we don’t have to worry about poll worker health. We don’t have to worry about consolidating polling places. We don’t have to worry about voters being scared when they go to the polling place. And vote by mail is something that we have done in the US with success depending on the state. Now there are very different sort of vote by mail regimes in different parts of the country. There are places like Washington, Oregon and Colorado which basically cast all of their votes by mail. But then there are places like Wisconsin and New Hampshire where they’ve only had roughly 5 percent of their votes cast by mail because they’ve required excuses for absentee ballots.

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S1: And so they you have a doctor’s note or like you have to have plane tickets or something.

S2: That’s right. Yet the medical excuse or you have to have some reason why you’re not going to be able to show up to the polls on Election Day.

S4: But the point is that the election administration regime is not prepared for this level of mail voting, making a major change to how elections work like this, like saying let’s move to vote by mail on the regular. It seems like this would be challenging in a normal circumstance. How long would this take if there was no coronavirus?

S2: Well, it’s in order to make any major changes to the infrastructure for election day. You have to have all your preparations begun 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 for the states that do not have a long tradition of vote by mail. They cannot just flip a switch and just say, all right, we’re going to mail ballots to everyone and we’ll just treat it that way. It’s a lot more complicated than that, partly because of how decentralized your electoral system is, the number of ballots that these local jurisdictions are dealing with, the equipment that’s needed, that certain types of scanners and the like to count vote by mail that ballots. And so it is a large logistical undertaking for any of these jurisdictions that want to make the transition.

S14: One of your colleagues has said we should think of vote by mail, sort of like a pipeline. And anywhere along this pipeline, the system can kind of spring a leak. Someone if you can take me through the pipeline step by step and just explain all of the little nooks and crannies and places where things can go sideways. I mean, let’s start with like creating ballots.

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S15: Well, let’s actually start even before that.

S16: So the first question is, are people registered to vote by mail?

S17: So even assuming that you you have everyone who’s going to be voting by mail, you have to have a very reliable database of addresses to get them the ballots. Now, that sounds like a very obvious and easy thing to do, but there are large swaths of people who do not live in sort of reliable addresses. Remember also that because of the economic and other dislocation that’s caused by the virus, you’re going to have all kinds of people living and staying in different locations than they otherwise would. And so the reliability of the address list is sort of the lynchpin upon which a vote by mail system is based. Then after that, you have to print the ballots so that you get the right ballot to the right voters. That also seems like it would be obvious and easy.

S15: But, you know, different voters, depending on where they live, vote different ballots. Sometimes neighbors will be voting very different ballots because of the way districts are drawn so that you live in six or seven different types of districts. And depending on how those districts were drawn, you could have a very different ballot than someone down the street.

S14: So even thought about that, it’s like it can be it’s like one of those math problems where it can be exponentially different because I’m in District 6 for this and maybe 9 judge that I’m voting for is in this district over here.

S15: Well, that’s right. And so it is not uncommon that you will end up having ballots. You know, I’d say one county will be managing close to a thousand ballots. And then you multiply that times the number of languages that the ballots are printed in some some jurisdictions, you know, manage ballots in a dozen languages or more. So you have to get the right ballot to the right person.

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S1: And that’s just the beginning of the vote by mail complications. Nate says there is one particular part of the process that is not intuitive at all when voters get their ballots. They fill it out, put in a special envelope, and then they put it in another envelope before they put the whole thing in the mail. They’ve got to sign the back of the external envelope. That’s to make sure the vote’s valid.

S15: The signature on the absentee ballot becomes a quite important part of verification then and the next stage, which is when the jurisdiction receives the ballot. And so assuming you’ve correctly sort of voted your ballot and signed on the outside, you then mail it or you sometimes can drop it off at a facility. In any event, once it is received by the jurisdiction, then they look and compare the signature that they have on their file, either from your driver’s license or from your voter registration card and then verify whether that signature matches the one that they see on the ballot.

S1: This part verifying signatures. It gets messy.

S18: A lot of people also don’t have familiar signatures. One thing that election administrators will tell you is that particularly young people these days are not accustomed to signing anything. And so that they don’t have any say, they they don’t teach cursive in school. They don’t have a typical signature. And so a lot of the signatures are not going to match. It also means that the election results could take several days before they’re reported. Because if you’re trying to verify all these signatures that have come in that don’t match what you have on the rolls, it could take several days. And that’s something we really do need to be prepared for, is the possibility that we will not know a winner on election night. It’ll take several days to verify the ballots.

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S14: I want to talk a little bit about who might be left behind with a big move towards voting by mail. I mean, we’ve sort of talked a little bit about the signature match problem. I know that in Georgia, it’s been found that minorities were more often being flagged as having signatures that don’t match. You talked about young people. We also talked about how people are moving, young people moving back in with their parents and older people moving in with their adult children. So where are those people voting? Can we actually track them down? And then there are people who have always faced this kind of struggle to vote. I mean, you look at Native American populations where they may not have a street address. They may be having a P.O. box. And, you know, getting to their house is not a matter of, you know, giving a typical address. It’s about turn left at the stop sign and go three houses down. So does that trouble you at all?

S3: It does. I mean, there are all kinds of biases that one sees it in shifts between different ways of voting in general. One thing we see is that in states that offer vote by mail as an option, it’s still the case that it is predominantly whiter and older folks who are willing to do vote by mail. And so you do see a racial bias in the in the data on who chooses to vote by mail. And a lot of this also has to do with people’s lack of trust in the mails to deliver the ballot. And so one thing that is absolutely critical for this election is to make sure that voters, whatever their race or party affiliation, believe that there is an equal likelihood that their ballot is going to be counted. And one way to do that is to not just trust the mail, but to allow voters to vote at home, but to deliver their ballot into something that looks like a polling place. So but then they feel confident that their vote was tabulated.

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S14: So what would it take to get this done? I mean, we talked about how we have such a, you know, sort of broken up election system. We have Congress considering this massive stimulus right now. And I know that they’re considering support for this kind of measure for vote by mail. I think you estimated it would cost three billion dollars.

S3: It will cost between 2 and $3 billion to really roll out a robust vote by mail program for the fall. I mean, it requires the purchasing of equipment, requires a lot more poll workers to roll this out. But I want to be clear that it’s not just vote by mail as a solution because of the reasons you suggested that there are going to be millions, tens of millions of people who are not going to want to vote by mail. In addition to allowing for vote by mail, we need to construct polling places in such a way that people feel safe when they go to vote. So what does that look like? Well, that requires, you know, maintaining social distance in these kind of polling places. Some people have described. This is like curbside voting. Could you have people essentially voting from their car where they come in and vote at the street?

S1: So drive through voting, kind of like a testing.

S19: Right. And then you could also just make sure that polling places are in very large facilities where there’s enough distance between the voting locations or ballot machines that no one will be too close to each other. Again, you’re going to have to have poll workers who are going to be, you know, having masks on and making sure that they don’t end up being infected by the swath of voters who are coming toward them. But it requires, you know, making sure that there aren’t long congregated lines on election day with the people are spaced out so that they’re not within six feet of each other. Again, it’s it’s a totally new world.

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S1: Lawmakers in Washington are trying to make this new world a reality. Trying to get funding for the election slipped into that massive stimulus. Senators are still debating, but even if they do that, elections are administered locally. So some states will roll out, vote by mail early, but others might take a wait and see approach.

S20: The problem is that if you want to deal with this problem in November, you have to deal with it. In June, a state cannot wait until August when they have to print the ballots in order to deal with this kind of problem. Also, it may very well be that the contagion recedes over the summer, but it’s also the possibility that comes back with a vengeance in the winter just around election day. And so, you know, worst case scenario is that people don’t take the proper precautions, the election authorities don’t take the precautions, and then they are stuck with an election that really can’t be run because of the rising contagion and the winter.

S1: Yeah. My colleague Mark does a stern wrote this article and he he gave the worst case scenario. He said, you know, it’s completely constitutional for a state legislature to scrap statewide elections for president and appoint electors themselves.

S21: It is true that you could have states that potentially could pick electors if they specify that beforehand. But if there are procedures that are in place on Election Day, at least by federal statute, that’s the procedure that then is chosen for the electors for the Electoral College. But there is the possibility that you could have different types of emergencies as we approach the first Tuesday in November where, you know, they say, oh, well, this is just gonna be too difficult. And so therefore, we would have the state legislature choose the electors that, of course, you know, provokes a constitutional crisis. And so it will ultimately lead to the courts for them to decide what the proper remedy would be.

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S1: And so far, we’ve gotten really used to constitutional crises and this would be sort of Bush versus Gore on steroids here.

S21: I mean, because if you could have multiple jurisdictions making last minute decisions on how to run the election, is that the scenario that keeps you up at night?

S1: Or do you have another?

S21: Well, right now, I’m just sort of focusing on the nuts and bolts of how you get the local jurisdictions to pull this off. You know that there’s enough. There’s enough in the short term that keeps me up at night. And I’m not thinking about the apocalypse on Election Day. I mean, it’s going to be just the basics of trying to get the jurisdictions on the same page as to how to manage this election is is difficult enough. But, you know, we can if we dedicate the effort and the resources to it, we can do it. It’s not as if we’re trying to invent a new technology here or to perfecta a voting machine. There are states that are going to run this election without problems.

S22: And we need to try to take best practices from those states and to imbue them in the other states that are not doing it. But it does require federal resources. So we need at least two billion, maybe $3 billion to pull this off. And so it should be part of any stimulus package that Congress passes.

S8: Nate, personally, thank you so much for joining me. Thanks for having me.

S23: Nate Personaly is a professor of law at Stanford University. And that’s the show we have been collecting your voicemails and tweets about how you’re making it through the coronavirus lockdown all across the country. And what I love about hearing from you guys is that your stories showed just how many facets of life are being impacted right now.

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S24: Hey, Mary, my name’s Laura unremovable, Becky. I’m an alcoholic. And it’s been really hard to get to meetings because churches are closing. Everyone’s anxiety is up because of the Fordham’s up because of this. These are all triggers for a lot of alcoholics. So they’re just checking on each other more regularly. Make sure everyone’s doing OK. Love what you’re doing. Thanks me.

S25: This is Maggie and I’m calling from Cincinnati, Ohio. My Facebook feed was flooded with people offering help to their neighbors, and several people made a face to face to try to connect people in southwest Ohio. So people have offered tutoring, rides, child care. Elder check in. Home cooked meals. Financial donations. Pre-polling pages. Gardening advice and see. And a bunch more stuff.

S26: Hi, Mary. This is Andrew Fuld’s calling from Fort Wayne, Indiana. I’m a fifth grade teacher and we haven’t had school holding up for high-poverty district graduate e-learning either. I will say that despite everything that’s going on, I thought kids are reaching out, asking for things to do on their own. Who knows for the next generation of kids that are coming up. Oh, hey, Larry.

S27: I’m Victoria. I’m from New York. Something I’ve been trying to do when I do take walks. I’ve been trying to go to places I frequent a lot. I’ve been trying to give the money. So I went to my favorite bagel place on the corner and I tried to give them like 60 bucks to sort of make up for the fact that people aren’t going as often. And you know, who owns the place? Turned to me and he said, no, I will not accept that money. We’re here to take care of you. It’s really wonderful to remember that we are part of a larger community, even if we all cancel each other and see each other as often. Keep doing the great work. Love you guys. Bye.

S23: Thank you for sending them. Keep the calls coming. Our number is 2 0 2 880 2 5 8 8. You can also tweet at me. I’m at Mary’s desk. What next is produced by Daniel Hewitt. Jason De Leon Morris Silvers and Mary Wilson. I’m Mary Harris. I’ll talk to tomorrow.