By Nathan Cemenska
Web Editor, Election Law @ Moritz
Moritz College of Law
Ohio Secretary of State Jennifer Brunner recently recommended that Ohio should begin experimenting with “all vote by mail” (AVBM) elections, in which the traditional polling place is replaced by what is essentially mandatory absentee voting for everyone. However, rather than moving to AVBM for all elections, Secretary Brunner proposes we use the system only for those elections in which there are no candidates, just ballot issues. In other words, where officials in many other states are considering an immediate transition to full AVBM, the Secretary proposes to study the issue and get some practical experience with it before making any big moves. Our legislature should support her proposal.
It should support it because there are a lot of issues with AVBM that need to be worked out before a full AVBM program could be responsibly implemented in Ohio. Specifically, while AVBM is relatively new and therefore difficult to judge, there is some reason to think it exposes ballots to a greater risk of fraud than traditional in-precinct or “hybrid” absentee/in-precinct voting systems. While this should not preclude experimentation, it weighs heavily against widespread use until we learn more about how it works. In the meantime, here is what Ohio might encounter if experimentation goes forward.
The main issue with AVBM is that it requires that all ballots be cast outside the polling place, whereas last November only about fifteen percent of Ohio ballots were cast in this way. The increase presents additional risks because, historically, ballots cast outside the polling place have proven to be convenient vehicles of fraud. Outside the scrutiny of the polling place, voters may be subject to unwanted influence from overzealous campaign workers or party officials. They may also be subject to types of influence that, sadly, are not necessarily unwanted, such as offers to buy votes. Mail ballots are also more likely to lead to multiple voting if corrupt players find ways to get their hands on extra ballots. Finally, mail ballots are sometimes intercepted and tampered with after casting. In one scheme, a friendly worker offers to “save the voter a stamp” by delivering the completed ballot on his or her behalf. Of course, no one can say whether the ballot arrives in its original condition, or at all. Also, AVBM systems might allow a postal worker or other insider to target and destroy ballots returned from a particular neighborhood he or she seeks to disenfranchise. In fact, according to a report by Paul Gronke, a prominent political scientist, Oregon officials would have “no way of knowing” whether ballots were intercepted and destroyed in this way (see page 4).
While our current no fault absentee voting system also presents these risks, it at least limits the number of mail ballots in proportion to the number of voters who want to vote absentee. In contrast, an AVBM system forces everyone to cast a mail ballot whether they want to or not. The result is that, if fraud is ever accomplished, it is likely to be more widespread under an AVBM system.
Despite these concerns, some legislators claim that all-mail elections will actually help reduce the risk of fraud. However, at least some of these statements seem to be referring to the risk of fraud accomplished by hacking DRE voting machines. While DRE hacking may be a potential issue, the number of people capable of understanding how it works seems fairly limited. In contrast, mail ballot fraud seems much more straightforward and likely to occur.
According to Gronke’s report, Oregon claims its system is more fraud-proof than other systems because of the rigor with which its officials verify signatures submitted on AVBM ballots against those contained on registration applications. Because AVBM spreads election activity over the entire ballot-submission period rather than trying to cram it all into one climactic day, the argument goes, administrators actually have the time to sit down and make sure the signatures match. Furthermore, they are required to have some training in signature verification, increasing the likelihood of preventing fraud. If all of this is true, then Oregon probably does have a better chance of catching forgeries than some other states, but that still does nothing to prevent those types of fraud that do not involve forgery. Furthermore, given the mind-numbing process that signature comparison must be, it is likely that some forgeries could slip through the cracks despite workers’ best efforts to focus their attention.
Then why would anybody want to move to an AVBM system? Part of the original justification was that it would increase voter turnout, but for whatever reason that hasn’t happened in Oregon (see page 2 of Gronke’s report). However, that doesn’t necessarily mean it wouldn’t increase turnout here in Ohio, which has different demographics. Of course, those very same demographics may expose new AVBM problems that Oregon hasn’t experienced. The Secretary’s incremental plan will help us get to the bottom of these interstate variations.
But besides the potential turnout benefit, AVBM requires a lot less money, effort, and staff than a hybrid system. Gronke’s report indicates that Oregon’s prior hybrid elections were both difficult and frustrating to administer, but that the AVBM system is much more manageable (see page 3). And officials nationwide are scrambling for alternatives that require fewer staff because they just can’t drum up enough poll workers to conduct proper in-person elections. Even where they obtain enough workers, they’re finding that many of those workers don’t have the background and training necessary to understand how to run a modern polling place.
With justifications like these, some would accuse officials of considering AVBM not because it’s better, but because they haven’t secured the money, resources and staff to do hybrid elections right. While in some cases there may be some truth to these accusations, there is more than a little bit of resentment behind them as well, and it is unwarranted. The reality that officials must deal with, and that those in the world of ideas can usually avoid, is that you’ve got to work with the materials you have. We all want what is best for our elections, and if traditional polling places are really doomed for whatever reason to suffer biblical plagues of long lines, late openings, confused workers, haywire touchscreens, security headaches, ballot shortages, fritzing scanners, blown VVPATs, counting delays, etc.—if traditional polling places are really doomed to suffer all these problems, then we have to let them go. But before we let them go, let’s make sure we’re doing it because they really are doomed, and not just because it’s easier.
And, in my mind, that is exactly what the Secretary’s plan would allow us to do. By starting off an AVBM “pilot” program of limited scope while continuing to tinker with our hybrid elections, we will be able to see whether and to what extent a transition to full AVBM is justified. For that reason, the legislature should pass the laws necessary to allow the Secretary to perform her proposed program of experimentation, and should do so quickly. Because if we don’t start learning how AVBM works now, forces may appear and make us implement a full AVBM system without having first had the benefit of the Secretary’s experiment. And that would be a rough transition.