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Volokh Conspiracy

How to Hold Elections During a Pandemic

Joshua and Rachel Kleinfeld offer some ideas about how to avoid a replay of the Wisconsin mess


Here in Ohio, Governor Mike DeWine and Secretary of State Frank LaRose closed polling places on primary election day to prevent the spread of Covid-19 at polling places, and the state legislature agreed unanimously to extend absentee voting and virtually eliminate in-person voting this spring due to the pandemic. Voters in Wisconsin were not so lucky, and there are good reasons to worry about this fall's general elections if continued Covid-19 fears still produce some amount of social distancing. Trying to hold in-person elections during a pandemic risks suppressing turnout or greatly spreading the disease, if not both.

Joshua and Rachel Kleinfeld have a proposal for how to address these concerns that seem eminently reasonable and doable: expanding absentee voting (or other mail-in voting) and drive-through voting. As they explain on NRO:

Neither requires unrealistic procedures. Drive-through voting, which parts of Wisconsin already use, lets citizens vote from the safety of their cars, using machines that have been disinfected. Voting by mail is already the voting system in Washington, Colorado, Oregon, Utah, and Hawaii. Expanding absentee voting in other states would require simply setting aside — for one election — requirements to request a ballot in advance or to provide specific justifications for not voting in person.

But these changes in voting procedures do require political action now. First, Congress needs to approve funding. States that already are cash-strapped from the pandemic's economic fallout will need money to cover expenses such as printing and mailing excess ballots. The recent stimulus was a good, bipartisan start — but provided less than a quarter of what is likely needed.

States need to take political action, too. Those that require a special justification to receive an absentee ballot need to make a one-election exception. States that do not allow absentee ballots to be counted until Election Day need to modify their rules so as not to slow counts and leave the election result in doubt. Most states need to ramp up capacity, or they may be swamped with more requests than they can handle. And because not everyone can vote by mail, states need to modify their polling places for drive-through voting, expand early voting hours, and implement similar innovations. This can all be done in time — but only if action starts now.

One reason this should be a viable strategy is that it's not entirely clear which party would be most helped by such measures. And while it is true that the risks of voter fraud from absentee or mail-in voting are higher than with in-person voting, there is little evidence of significant voter fraud in jurisdictions that use more widespread vote-by-mail or absentee voting, and greater use of things like signature matching can further reduce that risk.

Elected officials should focus on these issues now, both so that election administrators are prepared for the fall, but also so that the country avoids the sort of brinksmanship and last-minute wrangling that infected the Wisconsin election fight.  Voter confidence in election results is as important as ever, and it's important for political leaders to take action now to ensure there are not more Wisconsin-like election snafus going forward.

UPDATE: Here's more from Henry Olsen in the WaPo, and an earlier piece on how to ensure a "healthy and trustworthy" election from Nathaniel Persily and Charles Stewart, III and Rick Pildes on reducing one potential source of an election meltdown, both at Lawfare.