Are the various requirements of the National Voter Registration Act being followed? Does the COVID-19 pandemic, with increased calls for vote by mail, provide an opening to transform the way America conducts elections? Does the presence of ineligible registrants on voter rolls open the door for improperly cast votes?
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.
Greg Walsh: Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is an episode in our election law series titled “Voter Fraud and Voter Registration.” My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call.
Today, we are fortunate to have with us Linda A Kerns, an attorney at the law offices of Linda A. Kerns, LLC; J. Christian Adams, the General Counsel of the Election Law Center at the Public Interest Legal Foundation; Amber McReynolds, the Chief Executive Officer of Vote at Home and the author of When Women Vote; and Charles Stewart III, the Kenan Sahin Distinguished Professor of Political Science at the Massachusetts Institute of Technology.
After our speakers give their opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. Amber, the floor is yours.
Amber McReynolds: Thanks for inviting me, and its great to be a part of any panels and discussions that are focused on improving the health and safety and security of our democracy.
The pandemic this year has exposed the significant vulnerabilities that exist throughout our election process, and similar to other risks and challenges that election officials — and I am a former election official that ran elections for 13 years — similar to other risks that have come up in the election process over time, the pandemic has exposed all of these vulnerabilities that we did not have to anticipate before or have to deal with before.
And it has presented new challenges to election officials across the country, and so the focus this year for election officials as well as many of the organizations like the National Vote at Home Institute that support them has really been focused on how do we ensure that every single voter in the country has access to a safe and secure voting process, and also options and choice for how they engage in the voting process.
Every single state in the country offers vote-by-mail programs that can look different, whether it be requesting an absentee ballot by filling out a form, or that ballot is sent to you in the small number of states that offer that, but a ballot is sent to you based on the voter registration information that is on file and where you have said that your registration is or where your registration has been automatically updated through the efficient voter registration modernizations that have happened in a lot of states that do mail ballots regularly. So regardless, there is a vote-by-mail program and process in every single state in the country.
And the range of that has been modified over time. There’s benefits to the processes that have been improved over time. There’s also innovations that have happened within that process over time.
One of the most significant innovations in vote-by-mail programs actually was led by my office 11 years ago now in Denver where we created the first ever ballot tracking system that is very similar to tracking a package that you order online for ballots. And it utilizes intelligent mail barcodes along with other data entry points so that voters know where their ballot is from the moment it’s been mailed to all the way when it gets back to the election official. And election officials know where the ballots are through that system as well because we can track the intelligent mail barcode information as well as the voter’s movement in terms of sending that ballot back in.
So that type of system is one of the examples of the various ways in which vote by mail has been improved over time and how we’ve been able to enhance security while also serving voters more effectively.
But again, I think the most important thing is there’s no such thing as universal vote by mail. There’s no such thing as all vote by mail, but there are vote-by-mail programs in every single state. And it is hugely important that voters have options. Whether they choose to vote at home or they choose to vote in person, we need to make sure it’s safe, it’s secure, it’s transparent, accountable, and accessible. And none of those values that I just outlined are more important than the other, but the system really needs to factor in all of those values equally when we design systems that are available to voters.
So with that, I will pause there. And I know Charles would like to jump in and talk a little bit about in-person voting as well, which is a critical aspect of delivering safe and secure elections.
Charles Stewart: Thanks, Amber. And thanks to The Federalist [Society] for inviting all of us on the panel to be on the call today.
As Amber mentioned -- well, as Amber implied, the other side of the increase of vote by mail is what’s happening to in-person voting. And so just to take a little bit of a step back here, I’m currently co-directing a project with Professor Nate Persily of Stanford Law School called Healthy Elections Project. And there, what we’re trying to do is provide both research and tools associated with both helping to expand vote by mail where it’s appropriate and desired, but also to secure in-person voting for those places where it’s necessary or, again, desired.
And my view as the director of an election lab at MIT that’s very focused on the data, the questions around the issues of voting by mail, the related issues of fraud, voter registration, etc., revolve around trading off various risks, risks to the voters, health risks, risk to the voters that their attempt to vote might or might not be facilitated, risks to the system about security. And this is where fraud comes in. And so it would be nice to know that there is a point on this risk/risk tradeoff where we could have everything.
I think under these circumstances, especially under the emergency pandemic that we find ourselves in, that all of us are trying to certainly minimize all of the risks involved to voters involving security. At the end of the day, I think we’re finding ourselves trying to find the correct tradeoff.
Having said that, I think that part of the context of this conversation is around what’s the optimal use of mail balloting under these circumstances. And by the way, as an aside, before I -- I keep avoiding jumping into my comments, I realized. But Amber has taught me a lot about voting by mail, and one of those is actually that the phrase “voting by mail” is a misnomer.
And the reason is that even in states like Oregon, Washington, Colorado, that have now for several years mailed ballots out to all of their active voters, most voters in those states, in fact, return the ballots in person. And so there’s a -- so it really is kind of vote at home. And voting by mail really is a reference to the ballot delivery system and not really always descriptive of how the ballots get back to election officials.
Okay, so just to kind of jump into the points that I wanted to make here to compliment what Amber had to say, the reason why there’s such attention on expanding vote by mail right now is precisely because of COVID, at least in my view, the normatively proper reason to be doing that. I think we all know that there are strategic reasons that some people might want to expand vote by mail, and I’m certainly happy to talk about those. But it seems to me that the normative reason why so many people are thinking about expanding vote by mail is because of the pandemic.
And what we’re discovering as the primaries have certainly now occurred for the presidential primaries and we’re now into a series of state primaries, we’re discovering that voters themselves are kind of voting with their feet with respect to how they would like to cast ballots, but also the poll workers and the facilities where people would normally vote in person are under great constraint.
One of the things to keep in mind is in 2016, over two-thirds of poll workers nationwide according to statistics published by the Election Assistance Commission were over the age of 60, and about a quarter were over the age of 70. I don’t need to tell this audience about what the most vulnerable group of people is for contracting and suffering from COVID, but that’s basically the prime demographic. And so we keep hearing reports -- in fact, I talk regularly with poll workers, and I continue to hear reports, despite increased efforts at poll worker recruitment, of local election officials in many places having a difficult time recruiting the poll workers necessary to staff all the polling places that one would normally staff.
It’s also the case that about 40 percent of voters in 2016 voted in schools, in senior centers, in firehouses, which are also facilities that are, in many places, taking themselves out of consideration for polling places. So the constraints on in-person voting are real, and it seems to me that if we’re to have a comprehensive discussion about voting by mail and what the risks are, it seems to me that if one is concerned about fraud risks with voting by mail, then one of the things that we need to think about are the conditions under which polling places can be maintained and poll workers can be recruited into these positions.
Finally, I’ll just note that it looks like that even in many of the states that have hewed the line to a traditional view of absentee voting, that is, only for an excuse, and resisting the idea that COVID could be an excuse, that we’re seeing voters in polls state that they’re likely to vote by mail in November. And I make reference to a national poll recently done by the www.covidstates.org group, and I’m happy to provide people with the link to that.
It looks like between 40 and 50 percent of voters in states like Texas, Tennessee, Alabama, and Mississippi are stating that their intention is to vote by mail in the fall. And so even at the low end, we’re looking at a lot of voting by mail. And it seems to me that in places that want to encourage a more traditional level of voting by mail, then these issues of maintaining polling places and recruiting poll workers will be absolutely unnecessary in the future.
And so I’ll just leave it there, although I will also add to make it direct, I’ve been spending a lot of my time these days on calls with groups and law firms, etc., organized around trying to recruit poll workers. And so if there’s anybody on this call who thinks that it’s for them, I would encourage you to reach out to your local election officials and inquire about poll working. So with that, I’ll turn it back over.
Greg Walsh: Christian?
Christian Adams: Thank you. There’s a couple -- two primary things that folks need to understand about vote by mail. Number one, the reason that we’re talking about it so much now is because back in the spring, a group of left-wing foundations decided to pour millions upon millions of dollars into the effort to boost the narrative and to ask states to ignore their existing laws to do an automatic vote-by-mail election like we’ve seen in Nevada most recently.
The second most important thing to remember about vote by mail is that it just doesn’t work. And we now have some data, which I’ll discuss, that shows what a catastrophe it is to put your elections into the hands of the U.S. Postal Service. Data has just come in from Nevada yesterday. Nevada is one of these places that thought it sounded so good to move to vote by mail, regardless of what the law actually said, and to do automatic mailings.
So just take Clark County. These numbers just came in yesterday that we obtained. Clark County sent out 1,325,000 ballots, 1.3, let’s just say. Of those 1.3 million ballots that went out, only 300,000 came back; actually, 310,000 came back. And 7,000 of them were cancelled as invalid, as having some sort of defect that the voter would never know about. That’s 7,000 people who were disenfranchised. And the U.S. Postal Service found that 223,000 were undeliverable to the active registration address.
Now, that’s no surprise because the voter rolls are a mess. All across the country, Public Interest Legal Foundation found, for example, one person in Pennsylvania named Rashawn Slade who is simultaneously registered as an active voter seven times in Swissvale, Pennsylvania. That’s one of many, many duplicates we’ve found there. This was an active voter who would have been on the rolls in November with seven registrations if we had not found it in our lawsuit against Allegheny County. And they eventually reduced it down to one. But in many places, Rashawn Slade is still getting away with it.
Take a look at the data from New York. An election just happened in New York. The City Board of Elections received 403,000 mail ballots, but it only counted 318,000. There was a rejection rate of 21 percent; 21 percent were rejected. It’s not just New York and Nevada, either. The EAC in 2018 showed that 43 million mail ballots went out, and only 71 percent were returned by the voter, and only 92 percent of those were counted. In other words, vote by mail disenfranchises people.
You can take a look, for example, at Patterson, New Jersey. Everybody has seen what’s happened in Patterson where the images of stacks of mail ballots shoved into one single family post box where “YaYa” Mendez entered a guilty plea by snatching mail ballots out of post offices and voting them.
If you look at the data since 2012, the EAC data, this is the Election Assistance Commission, there’s been 31 million ballots that went out by mail that just never got counted; 28 million, we just don’t know what happened to them. Some people say they’re in landfills. Some people say they’re missing. We just don’t know. Two million of those were undeliverable. But listen to this statistic: 1.2 million of them were actually rejected upon receipt. That’s 1.2 million people who were potentially disenfranchised through vote by mail. And so it is not a miracle cure. It doesn’t fix things. It results in disenfranchisement.
And if I leave you with anything you need to focus on, it’s the Postal Service. We don’t want to put our elections into the hands of people who routinely deliver you your neighbor’s mail. The Postal Service sets a goal of 96 percent success for political mail. That’s 96 percent. That means 4 percent error. Four percent error is within the margin of error in the last presidential election of 10 states representing more than 124 electoral votes. The last thing we want to do is give the postman the power to determine who our President and our Congress are. That’s all I have.
Linda Kerns: Thank you, Christian. And thank you, Amber and Charles. I’d like to talk about my home state, Pennsylvania, because we changed our laws effective this year to allow no excuses mail-in voting. Previously, Pennsylvania had all of its voting in actual polling places in person except those who had an excuse due to illness, work, or disability. But the June 2020 primary, which we just had, provided a preview as to the debacle that’s going to take place in November unless we’re careful.
Despite the law of requiring deadlines for mail-in ballots, Pennsylvania’s governor issued an executive order the day before our primary in June. And he changed the rules of mail-in balloting, but only for some counties and not all counties. So he essentially did not treat all counties the same and changed the deadlines and rules for only some voters. Imagine if that happens in a contested election and counties who may trend towards one candidate have expanded time to vote, while counties that could trend towards another candidate have restricted times to vote.
In May 2020, Allegheny County, which is Pittsburgh, Pennsylvania, reported an issue with the computer system that caused the printing and mailing of duplicate mail-in and absentee ballots. And although the Pennsylvania law that was passed by our legislature last year and went into effect this year unambiguously mandates that mail-in ballots by non-disabled electors must be mailed or personally delivered by that elector, 20 boards of elections in Pennsylvania — and that’s out of 67 — with the knowledge and consent of our Secretary of State, allowed the ballots to be returned to shopping centers, parking lots, fair grounds, parks, retirement homes, college campuses, fire halls, and the like. And these ballot collection places were often unmonitored and unsecured.
Philadelphia, where I live, even used something called a “Voteswagon,” a car that the word “vote” on it. And it was owned and operated by a nongovernment entity going around collecting votes. And that just causes confusion for voters.
In Pennsylvania, also, the counting process of these mail-in ballots is an absolute disaster. For example, Philadelphia could not keep up with its counting, and the primary which occurred on June 2 had the counting start on June 4. Because Philadelphia could not keep up, without any formal notice, they stopped counting and started counting again on June 9. And that prevented candidates and parties from having poll watchers monitor the process because there was no formal notice. And in violation of Pennsylvania law, many counties counted mail-in ballots that lacked the secrecy envelopes inside the other envelopes.
And Charles mentioned the importance of poll watching. And Pennsylvania does allow and, in fact, encourage poll watching. But when you have a haphazard list of locations that you essentially turn into polling places, it prevents any effective poll watching by candidates or parties.
So seeing what could potentially happen in November, the Trump campaign filed a lawsuit on June 29 in the Western District of Pennsylvania in federal court, and essentially asked a federal judge to direct both the Secretary of State of Pennsylvania and our 67 counties to follow the law as written and not arbitrarily change the rules at the last minute, and more importantly, asked the judge to direct that we have to prevent the fiascos of things like Voteswagons riding around town collecting ballots. That case is currently pending, and the court issued a scheduling order and set an evidentiary hearing for September 22.
Now, that is not the only lawsuit. The Pennsylvania Democratic Committee quickly followed the Trump campaign’s lead and filed almost an identical lawsuit, but this time in state court. However, the Trump campaign’s lawsuit, which basically asked a judge to direct that the state follow the laws, the Pennsylvania Democratic Committee asked the judge to change the law that was passed by the Pennsylvania legislature and is asking a state court judge to order that satellite sites and drop boxes be allowed, even though our law doesn’t allow it, asking that the deadlines that were established by the legislature be expanding, and asking that the election code be liberally construed so that even imperfect ballots, those without the secrecy and without the protections in place, be counted. And that lawsuit is still in the service stage.
They also specifically want what is called ballot harvesting, which is third parties who would deliver and collect ballots. And this removes the process of voting from the secret and private nature of a polling booth and places it where groups of motivated individuals can influence, pressure, get involved, and change ballots.
And meanwhile, Christian spoke about the Postal Service. In Philadelphia, the Postal Service is all over the local news because we’re experiencing extensive delays in mail delivery, up to at least three weeks in some areas of our city. And this is a crisis that has attracted local congressional leaders. And everyone’s up in arms, not only because their constituents are missing their bills, their checks, and their correspondence, but we are now wondering how this will affect the mail-in voting process.
Pushing an all mail-in voting system on an overwhelmed system creates havoc. And the clear choice of interest groups to sue and change the law at the last minute shows us that this is a manipulation of the process. We basically see that they’re asking a judge to take the place of the legislature and override the people’s choices on the system that was put in place and change deadlines. And these last minute changes can change the outcome of an election because if illegally, incorrectly cast votes are counted, they’re going to dilute the will of valid voters.
Greg Walsh: Okay, let’s go to audience questions. We’ll now go to our first caller.
Caller 1: Hey. I do work as a poll worker in every single election. And I work in a district which is 90 to 95 percent Democrat. And why do I choose that district? Because if you’re going to look for voter fraud, you want to go someplace -- it’s like fishing. You want to go fishing where there are lots of fish.
And let me just say anecdotally what happens in this particular district. One of the best barbeque restaurants in my city happens to be located in this area. And when people walk out of the polling place, they get a card. And if they take their little oval “I Voted” sticker on the card and go to the barbeque restaurant, they get a free chicken and ribs dinner, worth roughly $10. And it’s really good chicken and ribs.
The line around the block for people to get their free chicken and ribs dinner has become sort of a joke in the local neighborhood. The news stations come there, and they cover it. Sometimes, it’ll take an hour to get from the end of the line to the front of the line, but it doesn’t really slow down or stop the process.
Now, if people can get their votes by mail, and they can deliver their votes to a central location like a barbeque restaurant for 30 days before the election, I can assure you that there are a lot of people who are going to make sure that they get their ballots and get that $10 free meal. Now, is this a bad thing? Well, the daughter of the owner of this barbeque restaurant is currently in jail.
Greg Walsh: I’m sorry, sir. Would you mind getting to your question?
Caller 1: Yeah. The question is -- it’s more of a statement. I think the fact is if you don’t think this is going to lead to massive fraud, you’re not on the ground watching what actually happens in elections.
Greg Walsh: Thank you so much. We’ll now go to our next caller.
Caller 2: Hi. I work in elections, and I have some observations with mail-in ballot issue. And it seems that no one wants a workable solution that can both balance privacy of the ballot and then security of delivery. And I don’t see why anybody’s discussing possible solutions. To me, it just seems we want to remain entrenched in the current system, which guarantees a monopoly market for free publicly traded companies to get contracts every two years for hardware and software.
Greg Walsh: I’m sorry, sir. Would you mind getting to your question as well? I don’t mean to cut you off, but we have a --
Caller 2: -- What evidence do any of the presenters have that the fraud that they see could actually overturn any election in the United States other than maybe a city council position?
Christian Adams: Well, I don't know if I’m unmuted. Moderator?
Greg Walsh: Christian, you are live.
Christian Adams: I would direct your attention to the proposed findings of fact and conclusions of law filed by the United States of America in the case of United States v. Brown. In just one county, one dinky little county in Mississippi, we cited eight separate elections, eight in one county of 23,000 people that were overturned as a result of voter fraud, most of them with absentee ballot fraud. So this is one. I can talk about more, but I want other people to have a chance to ask questions.
Linda Kerns: Yes, and I can mention that we’ve had elections overturned in Pennsylvania specifically due to mail-in balloting fraud. There’s a famous case, a man named Bruce Marks who was running for office. And he lost and sued because of the way that the absentee ballots were mishandled. And a judge actually overturned that election. So these types of situations can absolutely affect the outcome of the election.
Greg Walsh: Let’s go to our next caller.
Kim Crockett: Hi. This is Kim Crockett calling from Minnesota, the land of Norm Coleman and Al Franken. I have two short questions. One, could our panel experts comment on this phenomena of early voting? You can vote 46 days before the election in Minnesota. And then also, how could we get young people to step up and man the polls so that our older Americans who do this so dutifully every year can step back and not worry about it?
Amber McReynolds: This is Amber, and I guess I’ll jump in on that. As I mentioned, I ran elections for 13 years in three different voting systems, three different voting models. We implemented early voting during my time. I ran three different presidential elections, and I also was responsible for recruiting poll workers. And we had a youth voter program that we promoted for a long period of time. So I’ll answer both for you.
I think first and foremost, early voting, just like offering voters the opportunity to vote by mail or vote on election day, is important in offering voters options. And one thing that I have been a strong advocate for for my entire career is offering voters the choice and the options to decide what works best for them. And the problem with the current system in most states is that it’s restrictive in that it doesn’t offer enough options for voters that work multiple jobs, that are single parents that can’t take their kids to wait in line for five hours out in the rain, or that are worried about a pandemic or worried about other sorts of issues that restrict voting to one single day that, frankly, relies on a ton of extra people, resources, machines, voting booths, all of that stuff that you have to roll out on one day.
So I’m a huge advocate for offering more days and more time because it actually takes stress off of the system on that one day of voting to occur. So I think Minnesota -- and Minnesota actually leads the nation and has led the nation with Colorado being second in the last few years in terms of engagement and turnout. So I think Minnesota is a good example of a state that has formulated many of their laws around serving voters effectively, and their turnout reflects that, same as Colorado.
The second piece of poll workers, first and foremost, because of the way elections are structured and that multiple workers work on one day on a Tuesday, that has kind of limited the universe of people in a lot of ways that could work because of other jobs they have or that kind of thing. And so a lot of retired Americans and things like that have traditionally been poll workers.
I think it’s critical to introduce civics back into the classroom and make serving as poll workers -- and in many states you can serve starting at 16. That was something that we really worked very hard on in Denver to encourage students to come in to support the voting process and make that part of their civics learning process. We would tour them around the election process as well as train them through the entire process, and they would serve as poll workers. And that offered that extra support to election workers on that day.
I will also say that one of the greatest challenges that election officials have always had, prior to the pandemic, and that is recruiting enough well-trained and sufficient poll workers to work in the election process. And so the pandemic has made that even more difficult because the average age of poll workers is about 70 in most states.
And so there’s a lot happening right now with Power to the Polls and some other initiatives that are trying to get more people to step up and work. There’s businesses that are starting to give their employees the day off to work. All of those sorts of things are going to hopefully create a workforce that will go into the future that is more diverse and brings in more voices and more age demographics and more backgrounds into the voting process to be a part of it.
Charles Stewart: This is Charles. If I could jump in and add to what Amber said, especially about early voting, I think that people who are concerned about security issues with mail balloting would think about in-person early voting as a logical alternative. And I think there’s actually a lot to that. But one of the things that I would just point out based on my research is if the public health goal here is to do this horrible word, “de-densify” polling places on election day, then simply moving a high density of voters and election workers from election day to the days before the election isn’t going to help.
I’ve done some work particularly in North Carolina that has very extensive records about when people vote, either on election day or early. And it turns out that in North Carolina, at least, which admittedly is a state that does a lot of in-person early voting, their early voting sites are more crowded, particularly in the last three days of early voting, than the election day sites are.
And so as we think about offering voters safe alternatives, one of the things that I think election officials and others need to be considering for people who are concerned about public health, and that’s my main concern here, is ways of encouraging people who would want to vote in person early to vote as early as possible in that time window because it’s not going to help if everybody shows up the Friday and the Saturday before the election day. In fact, that might actually be a worse outcome from the perspective of public health.
Greg Walsh: Let’s now go to the next caller.
Caller 4: Yes, good afternoon. Thanks very much. Fascinating topic. I was just curious with respect to both the mass mail-in voting as well as the ballot harvesting, it seems like a prescription for a risk that hasn’t been articulated yet in terms of selling ballots. There’s lots of people who may care about the franchise, but they care more about cash. And I’m curious what mechanisms are in place besides just hoping you sort of catch some after the fact as kind of a deterrent to address that.
Linda Kerns: This is Linda. Well, Pennsylvania law actually prohibits all of that. Pennsylvania law states that the voter must either mail in the ballot themselves, as long as they’re not disabled, mail in the ballot themselves or drop it off at the election board. The problem comes in when these third party interest groups get involved and when the government also sanctions these drop-off facilities at schools, fairgrounds, retirement homes. So when you don’t follow the law, you open the system up for problems like you’re articulating.
Amber McReynolds: This is Amber. What I would just add on that note is with vote-by-mail programs -- and we have a whole list of best practices and recommendations that we make based on known experience in the election world and then improving these sorts of systems over time. First and foremost, like with any aspect of the election process, security is an important value, just like accessibility, just like fairness, integrity, transparency. All of those things are critically important. And it is illegal to interfere with a voter or an election official in most states. And there is a self-reporting aspect to certain elements of this, and then there is a monitoring aspect that happens within the election process.
I was actually -- I didn’t -- I was told about this recently. There are the same risks, honestly, with in-person voting and mail-in voting to this idea that a vote is traded for a benefit. And I didn’t know about some of these in-person voting issues that had popped up in states like Kentucky until recently. And there’s been multiple examples of people trading, frankly, their vote. And they take a picture, snap a picture of what they do in the polling booth and go out and get an opiate. And that is a real reality that has been reported with regards to in-person voting.
So I just think that we have to be very clear in terms of what are the risks, how do we ensure that voters report things that should not be happening to them, whether it be them being influenced or coerced to do something they shouldn’t be doing, or whether a voter interferes with the voting process, or whether a bad actor either uses misinformation.
And we’ve had other examples, too, of in-person voting. This happened in Colorado multiple times. It’s happened in multiple states around the country where voters get pamphlets on their door telling them to go to a polling place that’s not their polling place or telling them to go by 8:00 when really the polls close at 7:00. So there’s all kinds of examples of coercion, interference, things that we need to protect the systems from. And some of that, frankly, requires reporting of it by people who identify it. And that is a critical, I think, education piece that often gets missed in a lot of states in terms of best process.
And these are things that are important whether you’re voting by mail, voting early, or voting in person. We have to build ways and mechanisms to protect voters from bad actors and protect the system from anybody who’s trying to do something that they shouldn’t be doing within that system. And that is a critical factor in all of this and with vote by mail in particular.
A lot of the best practices that we recommend are included in our recommendations. I mentioned one of them earlier, ballot tracking solutions, which notify the voter as to where their ballot is. It also gives election officials visibility as to where the ballots are to avoid some of the issues that have come up on the phone today. And then in overall education campaigns, it’s critical in communicating to the public about these processes, and also making sure that the processes are transparent so people can see how ballots are processed, what that looks like, and have access to it.
Greg Walsh: Let’s now go to our next caller.
Caller 5: Yes. Has anyone looked at the impact of vote by mail in conjunction with --
Christian Adams: We didn’t hear the last part of that.
Caller 6: Hi. I was just told I had the floor, but the fellow ahead of me hadn’t finished his question, so he may have gotten cut off. In any case, I was wondering if any of you had comments about the judicial case in the -- against the various states who have inaccurate voter rolls such as counties that have 112 percent of the adults registered that are more than the number of the adults of voting age.
Christian Adams: This is Christian Adams. This gets back to my earlier point about Rashawn Slade being registered to vote seven times. We found that in the case of Public Interest Legal Foundation v. Allegheny County. There were a lot of other problems in Pittsburgh in that lawsuit. Public Interest Legal Foundation also sued Detroit and found a lot of problems like that, actual people who were registered to vote multiple times, actual dead people on the rolls, commercial addresses, lack of list maintenance, some people who showed birthdates that were placeholder birthdates that were never getting updated when they should have been.
So there’s a general problem with list maintenance across the country. Judicial Watch had a case in California. There’s been cases filed in Florida, Pennsylvania, Michigan. I’m trying to think where else. There’s been a problem across the country. So indeed, bad rolls are a problem that aggravate vote by mail being a solution.
Amber McReynolds: And let me jump in on that. Voting roll issues, and I will just highlight right now the most -- and frankly, Colorado’s been deemed the safest place to vote by multiple different measures and people, but it’s also been deemed one of the states with the most accurate voter rolls. And part of the reason for that is when we modified our voting laws, we approached in a comprehensive way and made sure that we had government systems all talking to each other about updating addresses automatically.
So if you update your address through the Motor Vehicle Department, that automatically feeds into the voter registration database. Department of Corrections, death records, all of that is automatic, so those updates happen all the time. That’s not the case in every single state, but that happens all the time.
And then the other aspect that we added into our laws, and it’s one of the only states to do this, is to update addresses automatically if you update your address through the Post Office. Not every state automatically makes that change. Some mail notices; some don’t. And then Colorado was also a founding member of ERIC, which, for instance, states like Texas just now joined recently, even though they’ve been one of the states that’s been terrible in terms of voter registration and list maintenance for a long period of time.
So voter registration is a critical aspect, but it’s just as important for mail-in votes and mail-in voting processes as it is for in-person voting. So voter registration is kind of the first step in the process in ensuring there’s accurate lists. And frankly, when I ran elections, polling place elections were actually a much bigger problem with regards to voters showing up to the wrong polling place. They had moved within the 30 days of the election, so then they’d end up voting a provisional, or they had moved to a different county within 30 days of the election, and they’d end up voting a provisional. So there’s actually a lot of examples of this aspect of the election process impacting in-person voting in a significant way, just like it does with mail-in voting.
But the one aspect of mail-in voting that I will say that actually is an enhancement of security is that in states that do mail ballots to a lot of the voters, they more frequently interact with the voting list. So for instance, Colorado is going to -- they’ve already done two elections this year where they’ve mailed ballots. That means that they’ve interacted with the voters in terms of that address and that location. And if it isn’t accurate, that ballot comes back undeliverable. That voter is marked inactive. And then they get a forwardable notice after that, but they will not get a ballot anymore.
So I only highlight that because the states that actually more frequently interact with their voting population have more accurate address lists. And vote by mail is a big piece of that because there is this constant interaction with the voting population generally because of those provisions that are in the law. And Colorado’s list got significantly better once we went to that voting model.
Charles Stewart: This is Charles. If I could just add a piece that interacts the statistic about more than 100 percent of adults being registered and voting by mail. In my analysis of these statistics, and I’ve poured over them closely as well, in almost every case at the county level when the total number of registrations is greater than something like the voting age population, that’s almost entirely accounted for by the folks who are on the inactive list.
And we could have a long discussion about what that inactive list means, but I think it’s fair to say to a first approximation in most places, if you’re on the inactive — and that’s a kind of creation of the NVRA, National Voter Registration Act — these are people that local election officials have suspicion have moved or died, or in general are not eligible to vote, but because of the NVRA, they can’t be taken off the list quite yet. And we know that, for instance, people who are designated inactive when there’s a designation in the state voter lists actually do, in fact, vote at a very low rate. It’s not zero, but it’s way below the turnout rates of people who are designated active.
Now, the policy issue is this. One of the issues that comes up both in mailing absentee applications to all voters -- that’s been one of the questions in this season. And the other one is in mailing ballots to all voters is that there’s a choice about whether a state or a jurisdiction mails to the entire list or just to the active portion of the list.
And I know people will disagree with me on this, but I think there are very good policy reasons to confine mailings to people on the active lists, especially if we’re talking about ballots. And I believe, and I’m happy to be corrected, that some of the statistics that Christian cited about Clark County, the undeliverable ballots were due to a choice to mail out to people including folks on the inactive portion of the lists.
Christian Adams: To be totally accurate, there was over almost 100,000 -- I didn’t get to this statistic but let me give it to you now.
Charles Stewart: Sure.
Christian Adams: There was almost 100,000 ballots that were mailed in Clark County, Las Vegas, that were bounced back as undeliverable that were mailed to the active list, not the inactive list. So that means there’s at least 100,000 ballots or addresses in Clark County that are problematic that the voter apparently doesn’t live there anymore. And that’s precisely what the problem is when you mail out ballots just to everybody without a request.
Charles Stewart: But I think that we would agree that that number would have been smaller if they had confined themselves to the active list.
Christian Adams: Well, actually, I’ve got the numbers on that. It’s 42 percent of the bounce backs came from the active list and 58 percent came from the inactive list.
Amber McReynolds: But what I would add to that, though, is that’s a security measure as part of the process. Those ballots are now back in Clark County, and they’re marked as undeliverable. So they’re now inactive, undeliverable because the jurisdiction just confirmed that the voter is not there.
So it’s part of a procedure, and this is my point is that there’s a lot of examples of how these types of programs actually improve the number of contacts that are made with the voter to confirm that they are where they say they are. And now under the NVRA, Clark County has to send them a forwardable notice that will get forwarded to them wherever they might end up, whether it’s out of state or what have you. But this is exactly it. And if you look at those rates, though, in Colorado or in Utah, those undeliverable rates are extremely low. And part of the reason for that is there’s more constant contact.
Christian Adams: Well, I would call it putting lipstick on a pig to say it’s a ballot security measure to mail a real live ballot to a million addresses that you don’t know whether or not they work, and the fact that they bounce back is a security measure. I don't think that’s something most people would want the election system to be doing as a security measure.
Amber McReynolds: They’re back in the hands of the voters. And I think the other aspect of this, though, is we are in an unprecedented crisis, so this is also another example of the pandemic’s impact on elections generally in that we do not have a resilient enough system -- most states do not have a resilient enough system. We saw primaries get moved, all of this. And that’s something that we have to have a long conversation about because that is a critical security flaw in the election process that it wasn’t able to withstand a pandemic without significant adjustments.
And so that’s the long-term policy discussion of, okay, how do we make sure that our systems are resilient from foreign adversaries, domestic adversaries, misinformation, pandemics, natural disasters, and all of the other physical security risks with polling places? We never talk about bomb threats, active shooter threats that happen every single election cycle. Those are the things that never get the attention that they deserve. The voters showing up to five hour lines, and millions of people being disenfranchised by that fact alone is also another aspect of it. We also don’t talk about provisional ballots getting rejected.
There’s all kinds of things that are really important in talking about a resilient election system, and the focus is always on mail-in voting, but yet we leave all these other things out. Eighty million people didn’t participate in 2016’s election, and 40 percent of them indicated that it was because they couldn’t get off work or it was inconvenient. And so we have to have a conversation about that because that means that there’s accessible issues that are inherent in the election process.
Greg Walsh: Well, we have two callers in the queue. I think we have time to get to both of them if questions are short. Let’s go the first one now.
Caller 7: Hi. I’ll make this a quick question. But in Georgia, I will just note that we have had the rolls cleaned up, but then because of the Stacey Abrams lawsuit, all the people who were marked as inactive were put back on the rolls. So there are -- one voter I know who has nobody living with her but is still getting requests for absentee ballots mailed to her, her son, and the people that she bought the house from who have moved to Texas. So there’s going to be a lot of that, even thought the Help America Vote Act required us to clean up the rolls, and we did.
My question is what -- because we know there are these problems coming up, what can we tell the poll workers? What should the Secretaries of State be doing now to -- is there a list someplace of best practices that we can do to stop these things? We know that there’s a lot of bad voter lists out there, and we know that there’s going to be problems. What can we do to stop them now?
Christian Adams: Well, I’m glad you asked about best practices because that happens to be the title of the Public Interest Legal Foundation publication called Best Practices for List Maintenance that was prepared -- it’s been reported with the assistance of EAC Commissioner Don Palmer, which I can say is accurate. And it is a list of things that states ought to be doing as it relates to voter list maintenance.
For example, don’t forget, there’s a lot of people out there, some who may be on this call, who don’t want any list maintenance done. They don’t think anybody should be removed from the rolls, which is precisely the position that was taken in the Husted case and rejected by the Supreme Court. So there are best practices that can be done using the NCOA, using third party information. But when you have seven people on the voter roll -- or excuse me, on person on the voter roll seven times in Pennsylvania and many other cases like it, clearly, best practices aren’t being used.
Amber McReynolds: This is Amber. In terms of the vote-by-mail program, we have various recommendations, policy recommendations. We’ve done a 50 state analysis and grouped states based on their not only security aspect but the voter registration aspect as well. And we’ve made recommendations. We’ve outlined a lot of those recommendations in our policy guidance on specifically vote-by-mail programs.
And frankly, there are various examples of how a vote-by-mail program can be secure, can be utilized. I mentioned the automatic updates to the national change of address database that the Post Office maintains, regular communication with voters about address changes. All of those things are critically important, not only for vote by mail, but, frankly, for in-person voting, too, because we don’t want people showing up at polling places that no longer live at the residences that they’re registered at. We want them to vote their accurate ballot style and vote from the precinct that they are actually in, not the precinct that they were previously in or previous county. And so all of that is critically important.
And we have various examples of where this has been improved. And one of the key recommendations, frankly, for states is to join ERIC. ERIC has been proven to be effective at determining and helping with that movement of the voting population where it happens.
And the reality is people don’t schedule their moving van around elections. So people move because of work-related issues or things like that all the time. And we have to have a system that can handle that and move people and make sure that people have access and are eligible, regardless of the moves that they make from a residential perspective around the country on a daily basis, frankly. People move all the time. They move on election day, too, and so we’ve got to have systems that can handle that.
And joining ERIC is critical. And there’s still a lot of states that have not joined that system yet. Texas is one of the recent ones that finally did. But that is critical to voter registration.
Linda Kerns: Yeah, if I can jump in, Pennsylvania, we have ERIC, but what we also have is a governor who changed the rules at the last minute. And the voters need to be aware of that and need to let their representatives know that they’re not going to tolerate that, that we have laws in place, and those laws have to be followed. And we don’t want executive action at the last minute overriding the will of the legislature, changing the laws, changing the rules because that’s what’s going to disenfranchise voters.
So the caller who asked what you can do, make sure your representatives know that you’re not going to stand for that, there are -- that we want the procedures in place followed, not last-minute changes on the whim and caprice of interest groups that want to essentially change the outcome of elections.
Greg Walsh: Well, we have one question left, but I do want to be mindful of the time. Do all four speakers have a moment to answer the final question, or should we conclude now?
Christian Adams: Go ahead.
Charles Stewart: I might have to jump off. This is Charles. But go ahead.
Greg Walsh: Okay. Well, then, let’s adjourn, and maybe the caller can email in their question. On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at firstname.lastname@example.org. Thank you all for joining us. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.