In Missouri, we have an interesting case working it’s way through the system. (The trial court issued its ruling yesterday; any appeal will have to be expedited.) The basic facts of the case are: 1) about five hundred people cast absentee votes; 2) the incumbent state representative got just under 80% of the absentee vote (picking up a net of approximately three hundred votes); 3) the challenger got the most votes from votes cast on election day; and 4) the incumbent won by a total of ninety votes. Given the small number of votes cast in primaries for state representative, the margin was significantly over the threshold for a recount, and the only option for the challenger was an election contest. In this case, the election contest focused on the validity of absentee voting. While there was some evidence of some improprieties by the incumbent in with some of the absentee votes, the evidence of such “fraud” impacted less than 20 ballots. Instead, the case came down to whether the election authority properly followed the rules for absentee ballots., and the current ruling emphasizes the difference between a true early voting system and an absentee ballot.
Many states — but not Missouri — have adopted early voting. In a state with early voting, the local election authority establishes one or more sites where people can vote during the early voting period. Each of these sites is just like an election-day precinct with voting machines and judges from both parties. While this system adds expense to elections, voters tend to like it. Rather than having to find free time on one specific day when they can get to one location, voters can vote at a place and time that is convenient for them. In states with early voting, 25% or more of votes tend to be cast before election day. With large numbers of voters casting early votes, early voting also makes election day easier by reducing crowds at polling place. Democrats also tend to like early voting for two reasons: 1) we actually believe that everybody should vote; and 2) groups that tend to vote Democrat are more likely to vote when it is easier to vote. Republicans, however, tend to oppose early voting because they definitely do not want everybody to vote and are more likely to win when turnout is low.
Absentee voting is not early voting. Generally, an absentee ballot is a mail-in ballot by an individual who has a good reason for not being able to get to their assigned polling place on election day (e.g., a college student attending college in another state or someone is homebound due to illness or disability). Because an absentee vote is not cast at a place run by the election authority (i.e. without bipartisan election judges to verify that the vote is being cast by the actual registered voters), there are certain procedural requirements to prevent voter fraud. (Unfortunately, even with these strict requirements, there are ways to defeat those requirements, and most voter fraud involves absentee ballots.) In particular, except for those who have registered in advance (typically for medical reasons) to receive an absentee ballot for every election, a voter wishing an absentee ballot must complete an application first. In most states, this absentee ballot application must be notarized. When the absentee ballot is sent to the voter, it is typically accompanied by (at least) two envelopes — one a privacy envelope to contain the completed ballot; and an absentee ballot envelope that needs to be filled out (and notarized) verifying that the voter is the person who completed the ballot, wants to vote absentee, and will not be voting on election day. In theory, on election day, the election authority becomes the absentee ballot precinct with bipartisan election judges reviewing the absentee ballot envelopes. If the judge finds that the ballot envelope is in proper form, the privacy envelope is removed and placed in a stack of accepted ballots; and the rejected ballot envelopes go to a rejected pile (still containing the privacy envelope). The pile of accepted privacy envelopes are then shuffled (so nobody knows which privacy envelope goes with which ballot envelope) and opened. The votes on those accepted absentee ballots are then counted.
The problem that typically arises in election contests is that election authorities tend not to strictly follow the rules. Many election authorities in the state (both urban and rural) tend to allow people to show up at the election authority to vote. Rather than keeping those ballots in a ballot envelope to be reviewed on election day by election judges, the election authority allows the voter to run the completed ballot through the optic scan device for the absentee ballot precinct. Additionally, for such in-person votes, the election authorities tend to be somewhat loose on whether the person has a valid reason for voting absentee. In the Missouri case, approximately 140 votes were cast in person. None of these ballots were placed into absentee ballot envelopes for review on election day. Approximately 100 counted mail-in absentee ballots had some deficiency on the application or on the ballot envelope.
Many of the problems noted by the trial court reflect the significant problems with the absentee voting process. The best practice would be to allow early voting (with election-day like procedures in place). For those who have to do mail-in ballots (no amount of early voting is going to make it easy for a student going to school in New York to vote in person in North Carolina or for a quadriplegic to get to the polling place), there should be a process set in place for multiple pre-election day review of submitted applications and ballots to verify that the ballot has been properly completed. If a ballot is deficient, the election authority should be required to notify the voter (preferably in advance of election day) of the deficiency and allow them to complete some affidavit to fix that deficiency. Furthermore, in any subsequent election contest — both for accepted and rejected absentee ballots — a ballot should be presumed to be valid unless the voter testifies that it isn’t.
This country makes it too hard to register and vote. The Republican Party mostly likes it this way. For Democrats to win, we have to put effort into getting out the vote — either on November 8 or during early voting periods if your state allows early voting. As will be discussed by me and others over the next two months, the issues are just too important for us to let the barriers to voting steal this election for Trump and Grassley and Toomey and Johnson and Blunt and McCain and Heck and Rubio and Young and Burr and Ayotte.