‘We’re Not Ready’: Experts Sound Alarm as US Embraces Mail-Focused Election

Some states allow officials to begin opening and processing votes prior to Election Day, but many don’t — including key swing states such as Pennsylvania, Michigan and Wisconsin.

In Wisconsin’s April primary, there were more than a million mail-in votes and they took a week to count. If the vote is close come November — in 2016 President Trump carried the state by fewer than 23,000 votes — the results in many swing states that decide the election might not be known for weeks.

On top of this, while many states say that a vote is valid if received by Election Day, some count votes as valid if they’re postmarked by Election Day and received up to a week later. Still others now face lawsuits from groups that want late-arriving ballots counted.

Foley pointed to litigation already underway in the swing states of Pennsylvania, North Carolina, Michigan and Wisconsin. “There’s so much litigation that it’s hard to keep track of,” Foley added.

In an ordinary election, a small trickle of late ballots wouldn’t make much difference, but when most people are voting by mail, Foley said: “You’re setting yourself up for not knowing the answer for a few weeks.”

Americans are not used to, or prepared for, a lengthy day in getting the results. In an already heated and contentious atmosphere intensified by social media, the delay could create numerous accusations and suspicions, even if the count is fair and accurate.

Beyond the simple delay in results, though, the absentee-ballot system could completely break down when too many people try to use it at once. For instance, when hundreds of thousands of people request mail-in ballots, officials can become overwhelmed and not everyone will get a ballot in time.

That’s because verifying ballot requests is complicated, and it’s not a simple as simply dropping a form in the mail.

In Wisconsin’s April primary, some 12,000 properly who requested ballots had yet to be mailed out as of two days before the election. A federal court said the remedy for this was to let people who got a ballot late vote after Election Day was over, but the U.S. Supreme Court — in a 5-4 decision — said post-Election Day voting was illegal, meaning that thousands voters ended up being disenfranchised even though they followed all the rules.

Similar problems have happened in most states that have held primaries this year, said Foley.

Stewart noted meanwhile that the problem might be far worse in the general election than in the primaries. 

“People who vote in general elections are not like people who vote in primaries,” Stewart explained.  “Low-propensity voters may be much more likely to wait until the last minute to request a ballot.”

Voters who don’t get a ballot in time can still go to the polls, but many are afraid to do so due to the pandemic. And even if they do, they may still have difficulty voting. In Maine’s primary last month, the city of Bangor, pop. 33,000, opened only one polling place and only allowed in 20 people at a time.

Polls might not open in part because poll workers decide at the last minute not to show up, Stewart said. That happened in Milwaukee during the primary this year, and the result was that the entire city had only five functioning polling places, he noted.

One solution that has been proposed is for the government to email ballots, but this invites fraud. Most official ballots are printed on specialty paper, but if people can print ballots at home this safety feature is lost.

In general, “voters should request an absentee ballot as soon as possible,” Foley recommended.

Even if voters get ballots on time, they may have difficulty using them. Instructions are complicated and are often written at a college level.

All states require a signature, and it’s not uncommon for people who have never voted absentee before to forget to sign. In California this year, 27,500 primary votes were rejected because they didn’t have a signature or the wrong person signed.

"We know that these signature requirements have already affected thousands of voters during the pandemic and our concern is that they'll affect thousands or even tens of thousands more as the election cycle continues," Dale Ho, director of the ACLU's Voting Rights Project, told NPR.

In addition, eight states also require voters to get a signature from a witness. (The witness isn’t supposed to see who the person voted for, but this can be confusing.) In Wisconsin’s primary this year, 14,000 ballots were thrown out because they didn’t include a witness signature. 

In South Carolina, a federal judge suspended the witness requirement for the June primary on the grounds that it could put voters’ health at risk.

Other states have more onerous requirements. For instance, Alabama and Arkansas require voters to submit ballots with a photocopy of their driver’s license or some other ID. Three states require that a voter’s signature be notarized. These requirements can easily trip up voters, particularly first-time voters or voters without a lot of education.

In Oklahoma, the state Supreme Court invalidated the notary requirement in May but the legislature immediately reinstated it.

Foley says that in some parts of New York this year, the rejection rates for mail-in ballots were as high as 20%.

One indication that mail-in ballots are confusing and hard to use is that an enormous number of people who request one don’t end up sending it back. Between 2012 and 2018, almost 20% of absentee ballots were never returned, according to the federal Election Assistance Commission. That’s more than 28 million ballots that are simply unaccounted for.

And even if a ballot is correctly filled out, it won’t count if the Postal Service doesn’t deliver it by the deadline — and voters have no control over how slow the mail is.

The Postal Service suggests budgeting a week for delivery. There have been a lot of delays due to the pandemic, however, and a crush of last-minute ballots could further clog the system.

In this year’s California primary, a staggering 70,000 ballots were disqualified for arriving too late, according to a study by the Associated Press.

In Virginia’s primary, well over 5% of mail-in ballots were discarded because they missed the deadline. In Arkansas and Oklahoma, the figure was over 3%, more than enough to affect a close election.

In the mayor’s race in Montclair, New Jersey, in May, 9% of the ballots were rejected for being late: That’s 1,100 ballots in a race that was decided by only 195 votes.

Some states say that a late ballot will still count as long as it’s postmarked by Election Day. But a big problem is that many states send out ballots with a “business reply mail” return envelope — no postage required — and it’s very common for the Postal Service not to apply a postmark to business reply mail. As a result, there’s no way to know for sure whether the ballot was mailed on time.

“There's an assumption that every piece of mail automatically gets postmarked, and that's just not the case," said Katie Hobbs, Arizona’s secretary of state. "Our ballots are postage-paid, so they're sent with bulk permits and oftentimes those pieces of mail are not postmarked."

According to Foley: “The legal system hasn’t caught up with modern post office reality, which is that not every ballot gets a postmark.”

In a close election, this could lead to legal disputes over a large number of ballots where it simply cannot be determined whether they were timely and valid.

This year’s Wisconsin primary featured thousands of ballots with illegible or missing postmarks. The state election commission left it up to each local official to decide whether to count the ballots, with the result that some cities and towns counted all the questionable ballots and others threw them all out.

Still another huge problem is ballot verification. Among other things, election officials are supposed to compare the signature on the ballot with a signature on file in the clerk’s office to make sure they match.

In the small city of Portland, Maine, one official said there was “total chaos” at the city clerk’s office during the July primary as employees tried to verify the signatures on some 17,000 mail-in ballots.

“It’s crazy. There are no words,” the city clerk, Katherine Jones, told Courthouse News.

And the process of verifying ballots is necessarily subjective. Although some training is typically provided, virtually no local election officials have extensive forensic education in handwriting analysis. Even if they did, it can be extremely difficult to determine if two signatures match because there is so little to compare.

“Even major treatises on handwriting analysis concede that it is extremely difficult for anyone to be able to figure out if a signature or other very limited writing sample” is genuine, Jonathan Koehler, a professor at Northwestern Pritzker School of Law, told the website FiveThirtyEight.

The fact that election officials are making weighty decisions based on such a tiny handwriting example is “scary,” said Mark Songer, an FBI-trained handwriting analyst.

No two signatures are ever identical, he said, and most people’s handwriting changes considerably over time. Registrars in California have noted that when they’re young, many people print their name rather than signing it, and add “smileys and hearts.”

Some studies have shown that untrained people make mistakes comparing signatures in as many as 40% of cases.

In many places, election officials hire temps to check signatures and review them only if the temp finds a mismatch. If a temp OKs a signature, elections officials never look at it. 

Some states use computers with signature-matching software. But there are at least six major software companies, all using different algorithms, plus local election officials often adjust the settings to be more or less picky in a number of respects.

States vary tremendously in terms of how often they reject ballots, Stewart said. In general, states that historically don’t have a lot of absentee ballots — including potential swing states such as North Carolina, Georgia and Texas — reject them at a higher rate, sometimes routinely throwing out 5–10%.

In the 2016 general election, as many as 45,000 votes were rejected for a signature mismatch in California alone. A California court later ruled that ballots can’t be rejected for a mismatch unless the voter is contacted and given an opportunity to fix the problem.

The court noted that there are “several reasons a person’s signature may differ on two occasions: physical disability, injury, a primary language that does not use Roman characters … or simply the passage of time.”

Also, “Many Californians register to vote on computer touch pads, yielding signatures that differ in appearance from those made on paper ballot envelopes.”

Some election offices compare touch-pad signatures from the state Department of Motor Vehicles. But one California registrar complained that people don’t realize when they sign a motor vehicle touchpad that it will later be used to verify their ballot, and as a result they simply produce a “scribble.”

Another problem is that it’s common for people living in the same household to sign each other’s ballot envelopes by mistake, a Stanford University study found.

Far more signatures could be rejected all over the U.S. this year due to the flood of mail-in ballots — and if officials have to contact all the voters who were rejected, especially in states that don’t begin processing the ballots until Election Day, this could create massive delays and confusion. 

If a race is close, and thousands of people show up at an office after election Day to complain about their ballot being rejected, “it could be a circus,” said Stewart.

Fraud is not the biggest concern — “it’s not like Boris and Natasha are running around trying to stuff 50,000 ballots into a box,” Stewart added — but he said absentee ballots do create far more potential for fraud and coercion that in-person voting. For one thing, a ballot that’s not filled out in the privacy of a voting booth might not be entirely secret.

Foley said that “absolutely, it’s historically been true” that mail-in voting results in less secrecy, because ballots get filled out over a kitchen table or at a union hall.

And, he adds, “If anybody tells you there’s no concern about fraud, they’re overstating the case.”

While it’s highly unlikely that widespread fraud could tip the presidential election, local instances of fraud could taint many other elections and create the perception that the whole process is unfair. That’s especially true if there are a few disputed elections that could determine control of the U.S. Senate or of state legislatures during a redistricting year.

Fraud at the local level is not all that uncommon. The Heritage Foundation maintains a database of 1,290 recent examples of proven election fraud, including 1,113 criminal convictions.

In 2018, an entire election for a seat in Congress was thrown out by the North Carolina state elections board due to ballot fraud, including illegal “harvesting” of absentee ballots. The seat was vacant for almost a year before a new election could be held.

In the 1997 Miami mayor’s race, absentee-ballot fraud was so common that a state appeals court ordered that all absentee ballots be disqualified.

Foley and Stewart both noted that when elections are contested in court, the arguments very often center on absentee ballots because the system is so prone to confusion and error.

A dispute over absentee ballots in the 2008 U.S. Senate race in Minnesota took eight months of litigation to resolve. Republican Norm Coleman appeared to have won the race by 215 votes, but a recount resulted in the inclusion of 953 absentee votes that had been rejected the first time and Democrat Al Franken was declared the winner by 312 votes.

Ballot disputes on a large scale are far more likely when most people are voting absentee, something that could paralyze the country and undermine confidence in the system.

“If we can’t handle this, we’ve lost our ability to engage in self-government,” warned Foley. “We can’t have an election if we can’t trust the results.”

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit