Mail-In Voting Doesn't Violate Arizona Constitution's "Secrecy in Voting" Requirement

From Arizona Republican Party v. Fontes, decided today by the Arizona Court of Appeals (opinion by Judge Cynthia J. Bailey, joined by Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass):

The Arizona Republican Party ("AZGOP") and its chairwoman Kelli Ward … filed this case against the Arizona Secretary of State … and election officials in each of Arizona's fifteen counties …, alleging Arizona's mail-in voting laws violate Article 7, Section 1 of the Arizona Constitution ("the Secrecy Clause"). The Secrecy Clause states, "All elections by the people shall be by ballot, or by such other method as may be prescribed by law; Provided that secrecy in voting shall be preserved." …

[Plaintiffs] conced[e] that voting in person before election day may be constitutional, and argued instead that mail-in voting violates the Secrecy Clause only because it takes place without the requirements that "(1) an official be present when absentee voters cast their ballots … and (2) that the official then watch[es] the voter enclose and seal the ballot in an envelope." …

Though Plaintiffs presented evidence to the superior court of alleged mail-in voting secrecy protection violations, in their briefing on appeal and at oral argument before this court, they concede their challenge is only a facial challenge. To succeed on their facial challenge, Plaintiffs "must establish that no set of circumstances exists under which the [statutes] would be valid." …

Plaintiffs argue Arizona's mail-in voting laws violate the Secrecy Clause because the laws do not require officials to secure a restricted zone around a voter who fills in a mail-in ballot….

When the Arizona Constitution was adopted, the definitions of "secrecy" included "the state or quality of being hidden; concealment[.]" Secrecy, New Websterian Dictionary, 735 (1912). "Preserve" definitions included "to keep from injury; defend; uphold; save; keep in a sound state[.]" Preserve, New Websterian Dictionary, 646. Thus, the Secrecy Clause's meaning is clear: when providing for voting by ballot or any other method, the legislature must uphold voters' ability to conceal their choices. The constitution does not mandate any particular method for preserving secrecy in voting.

Arizona's mail-in voting laws preserve secrecy in voting by requiring voters to ensure they fill out their ballot in secret and seal the ballot in an envelope that does not disclose the voters' choices. Section 16-548(A) provides:

The early voter shall make and sign the affidavit and shall then mark his ballot in such a manner that his vote cannot be seen. The early voter shall fold the ballot, if a paper ballot, so as to conceal the vote and deposit the voted ballot in the envelope provided for that purpose, which shall be securely sealed and, together with the affidavit, delivered or mailed to the county recorder or other officer in charge of elections of the political subdivision in which the elector is registered or deposited by the voter or the voter's agent at any polling place in the county.

The election officer charged with preparing mail-in ballots must "[e]nsure that the ballot return envelopes are of a type that does not reveal the voter's selections or political party affiliation and that is tamper evident when properly sealed." And, when opening the envelope containing a mail-in ballot, election officials must "take out the ballot without unfolding it or permitting it to be opened or examined…." It is a class two misdemeanor for an election official to "[o]pen[ ] or permit[ ] the folded ballot of an elector … to be opened or examined previous to depositing it in the ballot box."

These statutes ensure that mail-in voters' choices are concealed by requiring voters to mark their ballot so their vote cannot be seen and then to securely seal it in an envelope that does not disclose their vote. After a voter does this, election officials cannot open the ballot to reveal the voter's selection. It must be deposited in the ballot box to be counted. At no point can the voter's identifying information on their ballot envelope be lawfully connected with their vote. These protections are adequate to ensure the preservation of secrecy in voting. The legislature is free to adopt the more stringent requirements urged by Plaintiffs, but it is not constitutionally required to do so….

Plaintiffs argue that though Arizona law preserves secrecy in voting at polling locations, § 16-1018 fails to preserve secrecy in mail-in voting. Plaintiffs contend that because mail-in voters may photograph their ballot and post it on the internet, Arizona laws do not preserve secrecy in voting. Plaintiffs point to § 16-515(G), which states, "Notwithstanding § 16-1018, a person may not take photographs or videos while within the seventy-five foot limit" around polling locations. Section 16-1018 makes it a class two misdemeanor for a person to "[s]how[ ] another voter's ballot to any person after it is prepared for voting in such a manner as to reveal the contents, except to an authorized person lawfully assisting the voter," but "[a] voter who makes available an image of the voter's own ballot by posting on the internet or in some other electronic medium is deemed to have consented to retransmittal of that image and that retransmittal does not constitute a violation of this section."

We do not read § 16-1018(A)(4) as failing to preserve secrecy in mail-in voting. Section 16-1018(A)(4) merely provides a defense to the crime of showing another's ballot to any person after it is prepared. The defense applies when a person shows another voter's ballot if the voter who filled out that ballot posted the image online. And the legislature's decision not to prohibit a mail-in voter from showing her own marked ballot to another, whether in person or online, does not violate the Secrecy Clause because the legislature has commanded mail-in voters to "mark [her] ballot in such a manner that [her] vote cannot be seen." …

Comments

[Alpheus W Drinkwater]

That one paragraph nod to originalism seems to me entirely unnecessary to the decision. In fact the decision reads better without it.

[Eugene Volokh]

I didn't read this as a "nod to originalism" -- I read it as a statement of the current Arizona legal rule, which calls on courts to interpret the Arizona Constitution by "seek[ing] to give terms the original public meaning understood by those who used and approved them." That's the law; the Court of Appeals is supposed to apply it; makes sense that it would so note.

[Michael P]

Is the insertion of the modifier “ability to [conceal their choices]” consistent with that requirement? The definitions quoted don’t say that secrecy is the ability to choose concealment, but that it is concealment, so it’s not clear to me that this decision gives the words their original meaning.

(For example, one of the major mischiefs that ballot secrecy laws tried to address was volitional selling of a voter's ballot.)

[Rev. Arthur L. Kirkland]

Are Arizona Republicans tired of winning yet?

[Frank Drackman]

are you tired of https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx
yet,
apparently not,

Frank

[Rev. Arthur L. Kirkland]

Getting routed by America's better elements in the culture war has made conservatives -- the Conspirators, their downscale fans -- irritable and unpleasant.

Which is great!

[BravoCharlieDelta]

Hey, what do your betters permit or forbid you from saying in this forum?

[Rev. Arthur L. Kirkland]

None of my betters censors at this blog.

The only person who censors at this blog, so far as I am aware, is Prof. Eugene Volokh.

Pleasing authoritarians, he does it often enough to make up for the other Conspirators' relative libertarianism.

[bernard11]

Wow.

That's a stupid complaint. Do these people have no shame?

[Frank Drackman]

we'll see when Disanto wins Arizona in 0-24 on the strength of Mail In votes

[gallinalg85]

I agree that it's a bad argument, but Republicans wouldn't have to make these arguments if we had common sense restrictions on voting in the first place. Limit voting to white men with no illegitimate children, and America would be a shining beacon on a hill again.

[Rev. Arthur L. Kirkland]

How does the Volokh Conspiracy attract such a remarkable concentration of worthless bigots -- Republican racists, conservative misogynists, superstitious gay-bashers, white Christian nationalists, right-wing antisemites, backwater Islamophobes -- to its blog?

By design, of course.

Carry on, clingers. Until replacement.

[ReaderY]

Poe’s law must be striking again. I have no clue whether this was meant as sarcasm or seriously.

[Rev. Arthur L. Kirkland]

You must be new here. Welcome, newbie!

[Life of Brian]

Yeah, this one is such a pitch-perfect caricature I have to wonder if it's real or just a sock puppet account Artie uses to have something to tilt against.

[Brett Bellmore]

99% sure it's sarcasm. There are people out there who think like that, and don't mind saying it, but they're a damned sight rarer than people who'd write something like that sarcastically.

[StellaLink_the dog]

"There are people out there who think like that, and don’t mind saying it, but they’re a damned sight rarer than people who’d write something like that sarcastically."

But, we're not looking at the "people out there." We're looking at the population that inhabits these comments. Among those who contribute here, "people [...] who think like that" are not rare.

[John F. Carr]

Plaintiffs "must establish that no set of circumstances exists under which the [statutes] would be valid."

If it is possible that nobody is standing over the voter making sure she votes correctly, the law is valid. And it certainly is possible.

[Dan Schiavetta]

“Plaintiffs argue Arizona’s mail-in voting laws violate the Secrecy Clause because the laws do not require officials to secure a restricted zone around a voter who fills in a mail-in ballot….”

Here in New York, I used to have a restricted zone. I closed the curtain behind me, was all alone in that booth, flipped levers, and the levers went back to zero as I opened the curtain. Nowadays, I fill in the little circles in a big room with people all around, and carry the big ballot, black dots clearly visible where I voted, across the room to slip into a machine. Which sometimes spits the ballot back to me and I have to carry the ballot back and make clear whatever I already made clear (to me and to everyone). Someday, it will spit back a second time and the lady behind the table will say, “Did you mean to vote for George Smith, or Mary Jones?” And I’ll shout back, “Mary Jones!!”

[Mike Hansberry]

It is much better in PA, we get a plain manilla folder to carry our completed ballots to the scanner.

[JJJSSS]

We actually have those in NY as well, but the ballots are so large that it's annoying to carry them in the manilla folder

[TwelveInchPianist]

"Thus, the Secrecy Clause's meaning is clear: when providing for voting by ballot or any other method, the legislature must uphold voters' ability to conceal their choices."

I'm not sure the meaning is that clear. Secrecy requires that the voter be required to conceal their choices, and the current law doesn't effectively do that.

In-person voting where the voter is required to vote in private protects against external pressure to vote a certain way. There's no such protection under the current law.

[Noscitur a sociis]

Secrecy requires that the voter be required to conceal their choices

Why?

[TwelveInchPianist]

For the reasons I gave in the final paragraph of my comment.

[Ridgeway]

So when I yelled, "Leeroy Jenkins! I'm votin' for Kucinich!" at my local polling place, I was breaking the law?

[ravenshrike]

No, because people have zero way to tell how you actually voted.

[Brett Bellmore]

No, because ballot secrecy doesn’t mean you can’t TELL somebody how you voted. It means you can’t PROVE to somebody how you voted.

Whether they’re obtaining your vote by extortion or bribery, the whole exercise becomes rather less useful to them if you can just vote however you want, and lie to them about it.

Which is why that case a while back where the Supreme court upheld a lower court ruling striking down New Hampshire's law prohibiting 'ballot selfies' was so bad. The Court spiked an important protection in doing that.

[Procyon Mustelid]

Unfortunately, ballot secrecy makes it harder to successfully coerce or bribe voters by making it easier to get away with coercing, bribing, or otherwise suborning vote counters.

[Ridgeway]

Any law purporting to prevent me from showing someone else how I voted would be a gross First Amendment violation. I don't lose my 1A rights because it is possible someone could theoretically pressure me to vote the wrong way. That is like saying I lose my second amendment rights because someone else might use a gun for criminal purposes.

[Brett Bellmore]

Yeah, that's the idiot tack the court took here.

I suppose you think Grand Jury secrecy is a 1st amendment violation, too.

[apedad]

FFS Brett.

In voting, that's the PERSON's information and they can/should be able to share that as they want.

In a Grand Jury setting, the information presented does NOT belong to the jurors, and therefore the govt can impose restrictions.

I know you're smart on Non-Disclosure Agreements for classified information (312s, 4414s, etc), and you should know better.

[Absaroka]

"In voting, that’s the PERSON’s information and they can/should be able to share that as they want."

Are you sure? Suppose Megacorp announces they want to make voting easy, so they 'encourage' all workers to bring in their ballots and mark them in front of their supervisors. Stuff like that was an actual thing before the secret ballot (as was politicians taking over saloons and providing free beer to voters who voted the 'right' way).

If that was still happening, do you still think Fred has an absolute right to show his filled out ballot to the boss, or is it better to arrange things so Fred can plead 'sorry, Boss, I voted the right way, sure wish I could show you the ballot to prove it'? That's a fine ideological argument in favor of free speech, but I think one should also consider the current reality on the ground.

You can do the heavy lifting of proving that every hire-n-fire decision the CEO or mayor makes wasn't getting even for how the employee voted, or you can just make them secret. The latter seems like a lot less work.

My objection to Brett isn't that those kinds of ballot abuse aren't possible, or weren't common a century ago - it's that they aren't a factor today, that there are advantages to vote-by-mail, and I'm willing to continue with vote-by-mail (I'm in WA) until there is at least some evidence that problems are recurring.

[Brett Bellmore]

And my objection to your objection, is that ballot secrecy is WHY they aren't a factor today, and as we compromise it more and more, you can expect those abuses to return.

And, again I reference "card check": You can see a deliberate push there to abolish ballot secrecy exactly to enable these abuses.

[Sarcastr0]

Brett, this is exactly the Shelby County argument the Court, and you, discarded.

How do you distinguish?

[Ridgeway]

The issue is whether the voter has the right to voluntarily waive his right to keep his vote secret. No third party should be allowed to force the voter to disclose the contents of his ballot, but if the voter chooses to do so voluntarily, that is completely within his 1A rights.

[M L]

No, the completed ballot is not theirs and it needs to be handled appropriately. How they voted is their information, the ballot itself is not.

If everyone can post ballot selfies now, and otherwise prove and authenticate their vote choices, then systems can be set up to verify exactly which way you voted or if you decline to say. This would allow a pattern of social, economic, legal etc pressure being used against individuals to coerce or bribe the vote. If that takes hold, then having the option to keep your vote private, and declining to disclose it, does not help--it is just a slightly different form of failure to comply. It could easily become as good as an admission that you didn't vote correctly.

So I think this is just a half step from having no secrecy or privacy of the vote at all, and allows for the rest of the step to be taken in the above manner.

Of course, some people don't agree that your vote should be private. They might argue that social and economic pressure is a good thing, and will lead more people to do the right thing in general and will be beneficial overall. Or maybe they have other arguments. Maybe you should clarify whether you think that.

One might also argue that various potential negative consequences of allowing vote disclosure systems can/should be outlawed and policed separately. For example, you could make it illegal to pressure individuals to vote a certain way and disclose their vote. However, I doubt this could be easily defined, outlawed and policed, as this sort of thing could take many forms and is very broad, and some forms would be unlikely to be discovered or proven. Moreover, there are many people that would want to use such systems to pressure individuals to vote a certain way, such as those mentioned above who do not agree with vote privacy. This includes many in government, politics, and law enforcement. Therefore I don't think it should be expected that this won't happen.

[David Nieporent]

Which is why that case a while back where the Supreme court upheld a lower court ruling striking down New Hampshire’s law prohibiting ‘ballot selfies’ was so bad. The Court spiked an important protection in doing that.

The Supreme Court didn't do any such thing. It didn't hear the case. And since when did you suddenly decide that rights were subject to consequentialist analysis?

[Brett Bellmore]

Voting is no more an expression of 1st amendment rights, than testifying in a trial is. You certainly have a 1st amendment right, outside your polling place, to say how you voted. That in no way, shape, or form, implies a 1st amendment right to be allowed to PROVE how you voted.

[Sarcastr0]

It's speech, though. What exception are you making?

As others are pointing out, you're being *wildly* inconsistent in your analysis in this thread compared to your usual positions.

[StellaLink_the dog]

" you’re being *wildly* inconsistent"
That's how we know it's Brett and not some Brett impersonator.

[M L]

[The comment system seems to be eating my comments, so apologies if this shows up multiple times]

I'm interested in the idea that you have a free speech right to disclose a copy of your actual ballot, or otherwise verify to a third party how you voted.

Let's say you are a shareholder in a corporation, voting on the confidential terms of a merger. The corporation prepares a ballot. That document belongs to the corporation, but does it become your by nature of you filling out a bubble on it? Do you have a free speech right to disseminate it?

[M L]

Or, let's say your employer requires you to fill out some type of form. Perhaps it is a rather specialized employment that requires more hoops than the average gig. Maybe you are even becoming an FBI agent. Do you have a free speech right to publish your filled out form?

No perfect analogies, just brainstorming.

[Sarcastr0]

All your examples are where speech rights are being waived.

Conditioning voting on doing so seems quite dodgy.

[M L]

"All your examples are where speech rights are being waived."

I don't think so. Assume there is no provision involved that says, "I hereby waive my free speech rights," since there wouldn't be, I've never seen such a thing.

Maybe a confidentiality agreement functions that way. So let's assume further that there is no confidentiality provision.

[Sarcastr0]

Absent an NDA I don't see what the recourse is here.

[M L]

Well possibly they could say that there was a trade secret, or simply that the document did not belong to the discloser and their property was misappropriated, maybe copyright, etc. But what remedy they have is a different question from whether it is a protected free speech right.

What I’m thinking about is whether you really have a free speech right in the first place to publish a document as your own speech just because you marked a bubble on it.

Kamala Harris prosecuted David Daleiden for doing undercover investigative journalism that embarrassed Planned Parenthood, taking videos in a restaurant as I recall.

[Sarcastr0]

Publication of improperly acquired documents by a third party is absolutely within the 1A.

I'm not familiar with trade secrets law, but some cursory Googling reveals that 1A makes enforcement nontrivial absent an NDA.

Your bubble issue seems not on point - look at protections for leaks - leakers often don't write the doc, but are protected by speech rights.

[Rev. Arthur L. Kirkland]

No award of legal fees against the disaffected and delusional dumbasses in this one, so we won't hear Alan Dershowitz whimper again about how he should not be held accountable with respect to sanctions -- because he signs legal filings without understanding the contents.

[Mike Hansberry]

Not only are mail-in ballots secret, they are double secret because we do not even know for certain who filled them out or who sent them in.

Kidding aside, the court seems to sidestep the question of whether mail in ballots open the door to persons being coerced into voting a certain way because ballots might not be filled out in secret (with only the actual voter seeing their vote). The point of secret ballots is to prevent coercion of an individual's vote. The state cannot be present at every voter's residence to ensure that no one is pressuring a voter to vote a certain way.

[Absaroka]

"The point of secret ballots is to prevent coercion of an individual’s vote. The state cannot be present at every voter’s residence to ensure that no one is pressuring a voter to vote a certain way."

I'm sympathetic to that argument, but I'm kind of an empiricist: I haven't heard of even rare anecdotes of the boss making employees bring in their mail-in ballots for a communal voting party[1]. If it becomes a real world problem, then I'll be on board with banning mail-in voting.

[1]not in the last 100 years, anyway - I've heard stories from earlier

[Brett Bellmore]

There were two problems: Coerced voting, and voluntary sale of one’s vote. Ballot secrecy was supposed to solve both, by making it impossible to verify how somebody had voted.

Ballot secrecy worked, the problem largely went away.

Now that ballot secrecy is being dispensed with on a widespread basis, both problems will, predictably, return. That doesn’t mean that the authorities responsible for abolishing ballot secrecy will be in any hurry to document their return.

I'd say that this was an example of Chesterton's fence, except that the people abolishing ballot secrecy know damned well why the fence they're tearing down was erected in the first place.

[Absaroka]

Times change, Brett, and people - and the law - should adapt to the current conditions.

For example, I think affirmative action or preclearance made sense in the immediate aftermath of Jim Crow, but times have changed. IIRC you are arguing for gun law preclearance today, even though it wasn't needed in the 1800's. Times change.

[Brett Bellmore]

Sure, circumstances change.

But we know for a historical fact that vote buying and extortion were a big problem before ballot secrecy was adopted. They’re WHY it was adopted, and that adoption is why they went away.

I don’t see any reason at all to think they won’t come back if we get rid of ballot secrecy. As I say, this is Chesterton’s fence, only the people tearing the fence DO know why it was there, and WANT the problem back.

It’s no different than when the left tried to get rid of ballot secrecy for union certification elections. It wasn’t because it wasn’t needed, it was because it got in their way.

[Dilan Esper]

One big circumstance that has changed is the cell phone. Good luck prohibiting people from taking pictures of their "secret" ballots.

[bernard11]

the people tearing the fence DO know why it was there, and WANT the problem back.

Oh stop.

With all the mail-in voting that there is in the country do you have any evidence at all that this sort of coercion is any kind of problem?

No. You don't. You just want urban voters standing in long lines.

[Brett Bellmore]

I pointed out evidence: Union certification elections are secret ballot. Or used to be, anyway. Look up what's been going on with "Card check" legislation.

Secret ballots get in the way of people who want to buy or coerce votes.

[Sarcastr0]

The fence you lament being torn down prevents...lazy people voting?

Your rejection of both the practical and moral arguments for democracy make your arguments pretty ungrounded.

[Brett Bellmore]

Huh? Are you even trying to understand anything I'm writing, or are you just groping around for random objections?

[Sarcastr0]

I replied to the wrong comment.

But your union example is not really on point, is it?

You're using a 'there could potentially be an issue' analysis that is a solution looking for a problem.

Though, as I noted in my misplaced comment, the problem seems to actually be that the wrong types of people are able to vote these days.

[StellaLink_the dog]

"Are you even trying to understand anything I’m writing"

The problem is not that you are not being understood, the problem is that what you are writing has no application to the question at hand, i.e. voting in US elections and absentee ballots.

There are lots of voting situations in which the voting is not in secret. Juries, for example, are not required to have votes taken secretly. Likewise, Congressional votes.

If I were voting to on the choice of union certification I might prefer that the ballot be taken in secret but I see no reason that there should be a legal requirement. Indeed, the secret union ballot may result in more workers being coerced by management intimidation than if the vote is public.

[Moderation4ever]

"Coerced voting, and voluntary sale of one’s vote."

Both of these can happen with mail-in or with in-person voting. Yes, in one case the person making threats or paying is more certain of the results, but the absence of proof will not stop this type of behavior. What we know is there is no real evidence of this being a significant problem. After every election there are a few cases of fraud and likely a few cases of threats or payments. But it has never been shown to be enough to change any election with a large number of voters.

[Brett Bellmore]

“What we know is there is no real evidence of this being a significant problem.”

That’s because the absence of proof DID stop this type of behavior! It was a big, big problem before ballot secrecy laws put a stop to it. That's why they were enacted in the first place!

You’re like somebody justifying tearing down a fence because there’s no proof it’s needed, nothing had been crossing that line in the sand where a fence stood.

[Moderation4ever]

No, I am not suggesting tearing down the fence. I am suggesting that it is not necessary to make the fence higher and add razor wire to the top. The rules we have are working well, address problems that come up and not invent them beforehand.

[Brett Bellmore]

The vast expansion of absentee voting during Covid WAS tearing down the fence. What you're looking at here is an attempt to fix the fence.

[StellaLink_the dog]

“What you’re looking at here is an attempt to fix the fence.”

That’s nonsense. What we’re looking at is a blatant attempt by partisan actors to “fix” the system because they perceive that they will be more successful at election time if they can keep the “wrong” people from voting. Although this may not be explicit, one need not be a mind reader to figure it out — just mildly aware.

[bernard11]

You’re like somebody justifying tearing down a fence because there’s no proof it’s needed, nothing had been crossing that line in the sand where a fence stood.

This is actually a perfect description of the Shelby.

[CJColucci]

And RBG said as much at the time.

[Rev. Arthur L. Kirkland]

The point of secret ballots is to prevent coercion of an individual’s vote. The state cannot be present at every voter’s residence to ensure that no one is pressuring a voter to vote a certain way.

This argument is relatively new. Voting from home (absentee, a method that traditionally favored Republicans) is not.
This complaint did not develop until disaffected and delusional conservatives became concerned that there might not be enough bigoted, half-educated, religious voters left in America to keep Republicans competitive in national elections.

[Bob from Ohio]

"The state cannot be present at every voter’s residence to ensure that no one is pressuring a voter to vote a certain way."

My late mother in law hated Hillary Clinton, hated her with a white heat, 20+ years of hate. She had some dementia by 2016 and my sister-in-law filled in her ballot for her voting for Hillary and then posted it on Facebook like a trophy. It was a false vote and one she would never have made, ever.

Mail voting is bad.

[StellaLink_the dog]

No, mail voting is not bad, your sister-in-law is.

edit: And how, exactly, do you know what your sister-in-law did? If on her word, perhaps she was just pulling your chain in order to elicit a rabid reaction.

[Bob from Ohio]

"then posted it on Facebook like a trophy"

I didn't react to her. What good would it have done?

Mail voting allows things like this to happen more easily.

[StellaLink_the dog]

"I didn’t react to her. What good would it have done? "

Yes you did, and you still are.

[Brett Bellmore]

They substituted the mere possibility of secrecy for an actual requirement for secrecy. What a hollow reading!

[Michael P]

The key seems to be that the legislature told voters to make sure there was secrecy, and that's good enough, which is one of the dumbest things I've heard of. It assumes we're amazingly ignorant, gullible, or both.

[Moderation4ever]

Prior to Donald Trump mail-in voting was most often used more by Republicans and Republican legislature often facilitated the practice. So, it usual that Republicans are working so hard to curtain mail-in voting. It is working against a natural strength. A number of Republicans have noted that rather than attempting to curtain mail-in voting the party needs to encourage more of its members to do so. I agree with these Republicans.

[Brett Bellmore]

Mail in voting was usually used by Republicans at that time because it was used by shut in seniors and military personnel, who tended to be Republicans. It was used by people who NEEDED absentee voting.

Now that it’s a mere convenience, it’s used by the lazy, who could show up at their polling place on election day, but find that it’s a bother. And it’s political tradition that the Democrats have more lazy voters than the Republicans; All those jokes about Republicans praying for rain on election day, for instance.

But, yeah, entropy rules, the odds of getting this rolled back at this point are slim. Republicans need to adapt to the new terrain, not wistfully dream of putting things back the way they were.

There may be a rational case for putting things back the way they were, but lazy people won't listen.

[Moderation4ever]

Lazy people don't stand in line hours to vote. Lazy people did not put their bodies on the line to gain the right to vote. The fact is that mail-in works better for big urban area filled with, you know, "those people". Those people that you know vote Democrat. Well, if the Republicans were not so lazy they would work to get the votes of "those people".

[Brett Bellmore]

The fact is that big urban areas have proportionately big resources for voting, and the population density means that the precincts are really small, and voting places closely spaced.

It's just an excuse Democrats deploy because they run most cities, and do a terrible job of it.

[Bob from Ohio]

"It’s just an excuse Democrats deploy because they run most cities, and do a terrible job of it."

They do a good job of cheating though.

[Nige]

So good they never get caught or leave any evidence that it happened, apparently.

[Bob from Ohio]

Who is going to catch them? Everybody in authority is also a Democrat.

[Absaroka]

I'm just writing to point out that you are explicitly analyzing this in terms of whether it helps the D's or the R's; you think making it less convenient to vote helps the R's. And you are consistent in that for both mail voting and voter ID.

I don't care whether some policy favors one team or the other. I support mail in voting because it is convenient - especially that it makes it easier to make an informed vote on the down ballot elections. And I'm happy with voter ID, because I think the D objections that people can't get ID are just the mirror image of your hypothetical parade of horribles for mail in voting.

Neither of those lines of argument are particularly convincing to people who doesn't care about giving marginal advantages to one party or the other.

[JasonT20]

I don’t care whether some policy favors one team or the other. I support mail in voting because it is convenient – especially that it makes it easier to make an informed vote on the down ballot elections. And I’m happy with voter ID, because I think the D objections that people can’t get ID are just the mirror image of your hypothetical parade of horribles for mail in voting.

As with everything, the devil is in the details. There are genuine concerns about security relating to mail in voting (which I think have been addressed adequately). There are genuine concerns about whether ID requirements are necessary for security (I've seen little to no evidence that they are) and whether people currently without accepted forms of ID can really get them easily enough (The question there can come down to differences in demographics of people with such difficulties. Which makes it an Equal Protection issue.)

I tend to think of it as a relative risk problem. How much fraud might the system be allowing vs. how many people might be prevented or discouraged from voting? If 3% of eligible voters don't have the required ID and couldn't vote without wading through bureaucracy to get one, but the facts are that prosecutions for voting fraud are typically less than 100 per state out of millions of votes cast, then is it worthwhile?

Our election system would have to be so porous as to allow more than 100 times as much fraud as is caught and prosecuted before it would have a chance to affect all but the absolutely closest elections.

[bernard11]

it’s used by the lazy, who could show up at their polling place on election day, but find that it’s a bother. And it’s political tradition that the Democrats have more lazy voters than the Republicans; All those jokes about Republicans praying for rain on election day, for instance.

Fuck you, Brett. This is very thinly veiled racist bullshit.

Again, it's plain what you want - long lines in the cities to discourage urban voters, because you don't like the way they vote. That's it.

All the rest of your "concerns" about security, coercion, etc. are just a cover for that. Period.

[Brett Bellmore]

When somebody says something about lazy people, and another person leaps to the conclusion that they're talking about black people, well, yeah, there's a racist present in the room. But it's not who you want to admit...

[Sarcastr0]

This doesn't seem much like you like democracy, Brett.

Consider what it says about the GOP that you think they'd be more successful in a more aristocratic system where voting isn't just something anyone can do so easily.

[Brett Bellmore]

Sarcastr0, I agree with the sentiment that "Democracy is the worst system of government, except for all others." Democracy sucks. All other ways of collective decision making suck worse.

The best thing is to avoid collective decision making altogether, wherever possible, and sadly resign yourself to democracy where it isn't possible.

Sadly, people who think democracy is actually good, not just least worst, tend not to try to avoid collective decision making. They see collective decision making as just another opportunity to have more democracy, which is good, right?

But the present discussion concerns how to execute democracy, not whether to. And ballot secrecy has proven to be an important protection against coerced and bought votes. That's why it spread world-wide!

The trend towards downplaying its importance represents, AT BEST, people forgetting how bad a problem that was. At worst, and pessimistically most likely? It represents people who want to bring those evils back.

As demonstrably some people do, see "card check".

[Sarcastr0]

You want to execute democracy by discarding it and making an aristocracy. You are explicitly advocating for narrowing the franchise.

[Brett Bellmore]

If I'm "explicitly" advocating for narrowing the franchise, you can doubtless point to where I said it, with an actual quote.

[Sarcastr0]

You don't want 'lazy people' to be able to vote. You are against making it easier to vote for what you have made clear are explicitly reasons based on partisan outcomes.

Fewer people being able to vote.

Add in your hostility not just to democracy but to 'collective decision making' and there's quite a picture being painted.

Oh, and your feeling that blacks are ungrateful to this country, and MLK is a grifter. Plus the Bell Curve is good science...you're really going places!

[Brett Bellmore]

Oh, so you've got squat. I thought so.

[Sarcastr0]

You don’t like the wrong sort of people to vote.

You want the set things up so those sorts don’t vote. You even noted that the wrong sorts vote Democratic.

That’s restricting the franchise, even if you’re not literally advocating for a poll tax.

[StellaLink_the dog]

Perhaps your advocacy for narrowing the franchise hasn’t been literally explicit, but it’s a fair inference to conclude that you advocate making it more difficult for lazy people to vote. It’s also a fair inference to conclude that by “lazy” you mean to include a greater fraction of those who tend to vote for Democratic candidates rather than Republican. I will leave it up to you to explain exactly what those features of character and identity are among Democratic voters which correlate to “lazy,” if you have enough integrity to do so.

edit:
1. Laziness is not a good reason to fetter rights.

2. Despite what some (Somin, for one) claim, it's unlikely that there's any good reason to expect better democratic results by exluding or restricting participation by the lazy, the stupid, and the ignorant.

[Brett Bellmore]

“The Franchise” is who CAN vote. I am not for narrowing that, on the contrary, I think, for instance, that felons should have their right to vote restored at the end of their sentence. OTOH, I don’t think it should be widened to non-citizens or minors, either.

OTOH, I don’t think making voting easy should be the single, solitary, and overriding basis of how we structure our democracy.

We have criteria for who has the right to vote, they should be enforced.

People are only entitled to vote once per election, in particular places. That should be enforced.

Everybody who can, should be required to vote in person on election day. There are multiple reasons for this, such as preventing hypothetical scenarios like brain damaged Senators being elected because they encouraged their supporters to vote before the only debate they’d agree to exposed the extent of the damage. And, yeah, ballot secrecy is a joke for absentee voting, even if some courts want to pretend otherwise.

Minimizing the number of votes cast remotely would allow a lot more resources to be put into assuring ballot secrecy, like having mobile polling teams that travel to shut ins.

OTOH, making election day a national holiday? Hell, yeah! It’s stupid it hasn’t already happened.

[Absaroka]

I sometimes wish we could institute a one question test for prospective voters:

Q: A candidate says "if elected, I will lower taxes, balance the budget, and increase benefits". Is the candidate lying (true or false)?

I submit that anyone who thinks the candidate isn't necessarily lying is lacking the critical thinking skills to make good voting choices.

(if it needs saying, of course, there 1001 practical reasons such a scheme can't be made to work)

[Sarcastr0]

I’m a morals democracy advocate – we deserve the government we vote for, good and hard.

If the governed lack critical thinking skills and are captured by populist pie-in-the-sky crap, then that’s what we deserve for failing to inculcate those skills.

Yes, that means we deserved Trump. And may deserve him again, if we learned nothing.

[apedad]

And as I’ve mentioned before, our democratic system allows our nation to be politically flexible, and move to the right or left from time to time.

If we don’t allow that, i.e., if people didn’t see real results from elections, then we will see a real – shooting – uprising.

It was – IN THE LONG RUN – good that Trump won (and then quickly lost).

[JasonT20]

It was – IN THE LONG RUN – good that Trump won (and then quickly lost).

That remains to be seen. Instead of learning something positive from Trump's time in politics, enough people might double down on Trumpism to the point where violence becomes commonplace. We might already be there.

[Sarcastr0]

That's a fair institutional point, I think. Certainly since the US tied itself to democracy as a civic back in the day, and then again after the Civil War.

[StellaLink_the dog]

"That’s a fair institutional point, I think. Certainly since the US tied itself to democracy as a civic back in the day, and then again after the Civil War."

I, as well, am not convinced that the Trump experience will prove out to have been beneficial. I have trouble understanding how the costs will ever be overcome.

As for the Civil War, it's true that the patriots beat the treasonous bastards into submission, at a terrible cost to both sides, but, in the end, the bastards won the peace and we still haven't gotten over it. We would have been better off had every Confederate field grade or general officer been hanged, as they deserved. But, the "Long Grey Line" wouldn't have it.

[Sarcastr0]

Can't speak for the Civil War hypothetical. I'd settle for a longer occupation and better Reconstruction.

I wish Trump hadn't happened; I don't think the silver linings outweigh the cost in norms, cynicism, and immiseration.

But it also may have been necessary based on where we were as a country. Some lessons need to be learned the hard way. (I'm not even sure we've seen the hard way yet).

I'm just a dude with preferences; sociology is a force. I take some humble solace in that when stuff doesn't go the way I want in politics or judicially.

[StellaLink_the dog]

" Some lessons need to be learned the hard way. (I’m not even sure we’ve seen the hard way yet)."

I'm not sure we, as a nation, have learned the Trump lesson. Consider that freak show that was on full display when the Republicans selected their speaker. Consider the Republican caucus in the Senate with Canadian Cruz, Swiftfoot Hawley, and Tom the Snoozer Cotton. And that's not to mention the divers into the bottom of the gene pool like Ron Johnson and Marsha Blackburn.

[Sarcastr0]

Historically, such collections of losers have oftentimes just whisped away as the national mood got lest populist.

But sometimes...

[StellaLink_the dog]

“such collections of losers have oftentimes just whisped away as the national mood got lest populist.”

We can hope. Even if they do get “whisped away,” that collection of cretins, criminals, clowns, and crackpots can do a lot of damage on their way out. That is, if a certain well-known mental defective maintains his fealty to the lunatic wing of the caucus. Nothing like shutting down the government and defaulting on the debt to give the American electorate what it deserves and good and hard.

[David Nieporent]

Yes, that means we deserved Trump. And may deserve him again, if we learned nothing.

What do you mean, "we"? The minority of people who voted for Trump may have deserved him; I have no idea why that means that the rest of us did.

[Sarcastr0]

Yeah, my stand on democracy is somewhat in tension with my acceptance of the EC as a way to elect the President.

I need to think more on it, but I do take some solace in Prof. Volokh's broadened definition of democracy/republic as everyone gets a voice, not majority rule.

[David Nieporent]

But let's forget about the specifics; let's assume that he got 51% of the votes cast. (Stop the steal!) Why would that mean that the 49% of us who didn't vote for him "deserved" him?

[Absaroka]

I have to ally myself with DMN here...I'm not a fan of holding all the members of a group collectively guilty for the sins of a minority (or majority).

I'm not sure that even everyone who votes for some charlatan 'deserves' what they get. If someone gullible believes the used car salesman that the rustbucket was only driven to church on Sunday, I wouldn't really phrase it that they deserved to get defrauded.

[Sarcastr0]

The society deserves the individuals do not.

It’s not punishment, it’s just deserts. So it goes with consent of the governed. Alas, Trump's America is also my America, where I live and which I love. Sad!

I'm not a libertarian - I get that libertarians have a different take on dealing with those who do not consent.

[JasonT20]

A candidate says “if elected, I will lower taxes, balance the budget, and increase benefits”. Is the candidate lying (true or false)?

By "benefits," do you mean programs that give money or services directly to citizens and permanent legal residents? Or do you mean everything that the government spends money on? Because the former wouldn't necessarily be impossible, especially if the candidate was proposing massive cuts to military spending. It also depends on whether "lower taxes" would be for all taxpayers, or maybe the candidate would lower taxes for middle income and lower taxpayers while raising them for the wealthy and corporations. (Corporate taxes used to be a much high percentage of federal revenue than it has been lately.)

Really, the failure of critical thinking would be to accept such vague promises without requiring the candidate to give details, not that what the candidate is proposing is impossible.

[Absaroka]

“Or do you mean everything that the government spends money on?”

Everything. Hopefully, the government isn’t spending on things that aren’t beneficial ????

“It also depends on whether “lower taxes” would be for all taxpayers, or maybe the candidate would lower taxes for middle income and lower taxpayers while raising them for the wealthy and corporations.”

Taxes in aggregate. Politicians don’t usually come right out and say ‘I’m going to stick it to you in favor of him’ (with sometimes, as you suggest, an exception for sticking it to corporations).

“Really, the failure of critical thinking would be to accept such vague promises without requiring the candidate to give details…”

Fair enough, I’d take ‘need more details’ as an acceptable answer. It's the people who think 'sure, why don't we eliminate taxes and just send big checks to everyone' crowd I hate to see voting. And I have encountered people in real life who are indeed that dumb ... the distribution has long tails.

[StellaLink_the dog]

candidate says “if elected, I will lower taxes, balance the budget, and increase benefits”

and further states, "I alone can fix it.”

[JasonT20]

Sadly, people who think democracy is actually good, not just least worst, tend not to try to avoid collective decision making.

Collective decision making is necessary any time that there is a problem that affects more than one person. Even deciding not to act on a problem is a decision. Even deciding that something is not a problem is a decision. The alternative to a group of people making decisions about how something affects all of them is for one person or a small subgroup to make the decision instead.

That is the essence of why Churchill’s quote that you paraphrased is correct.* Every alternative to democracy has been individuals or small groups of various elites making all the important decisions for whole nations. Monarchy, aristocracy more generally, Soviet and Chinese style Communism, fascism, dictatorships (military or otherwise), oligarchy, theocracy, or some blend of those are the alternatives to democratically electing representatives that have been tried.

Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…
Winston Churchill, Nov. 11, 1947

[Brett Bellmore]

"Collective decision making is necessary any time that there is a problem that affects more than one person."

Hardly. Generally problems that affect more than one person can be resolved by the involved parties bargaining, or a societal presumption that the affect in question isn't a "problem" to begin with.

[Sarcastr0]

Bargaining is collective decision making.

Agreeing to presume something isn't a problem turns out to have some awful effects when applied at the nationwide level.

[Brett Bellmore]

So, you think we should vote on whether I can eat cabbage?

[Nige]

'The best thing is to avoid collective decision making altogether'

Maybe not a million miles away from good ol' gallinalg85 after all.

[Brett Bellmore]

What, you object to people making their own decisions? You walk into a restaurant, and you're offended by the fact that you can pick what you eat, instead of everybody in the restaurant voting on what everyone will be served?

Look, dictatorship, and oligarchy, are collective decision making, too. Just even worse than democracy, because democracy, if working, at least sees to it that it's the majority oppressing the minority, rather than the other way around. Statistically better, even if still oppression.

Democracy isn't an alternative to oppression, (That's constitutional rights and limited government!) it's just a way of picking the oppressor.

In almost any case where people are able to make their own choices, that's better than democracy.

[JasonT20]

Mail in voting was usually used by Republicans at that time because it was used by shut in seniors and military personnel, who tended to be Republicans. It was used by people who NEEDED absentee voting.

That is not at all true. Why say something like that when it is so easy to check the facts?

https://ballotpedia.org/Analysis_of_absentee/mail-in_voting,_2016-2018

Even if you subtract the votes cast by mail from California, Colorado, Oregon, Utah, and Washington (the largest states where everyone is sent a ballot through the mail), nearly 14% of all ballots cast in 2016 were through the mail. Does it sound right to you that 1 in 7 voters would be "shut in seniors and military personnel"? Over 30% of voters in Florida cast ballots through the mail in 2016, and we have a lot of seniors here, but not that many. Florida is actually only a little ahead of the U.S. total for 65+ population. FL is 17.6% while the U.S. is 16.8% - and certainly the majority of seniors are not "shut in" to the point where they would NEED to mail in their ballots.

There may be a rational case for putting things back the way they were, but lazy people won’t listen.

Lazy people don't take a minute to look something up online before they make claims to check to see if what they believe is actually true.

[JasonT20]

Regarding Florida, it should also be noted that the Florida state government has been dominated by Republicans for over 20 years. If the Republican Party had a problem with mail in voting before Trump said anything about it, they certainly had the opportunity to do something about rather than make it easier.

[David Nieporent]

Not to mention that when Pennsylvania went to no-excuse VBM in 2019, it was the Republican legislature that did it. (And then after Trump lost tried to claim that it was illegal.)

[Bob from Ohio]

"California, Colorado, Oregon, Utah, and Washington (the largest states where everyone is sent a ballot through the mail)"

All one party states. Not a coincidence, "all mail" voting favors the party in power because they do the counting and now have more time with ballots.

[Brett Bellmore]

"That is not at all true. Why say something like that when it is so easy to check the facts?"

You know, I see this over and over, and it astounds me. Just how short of a time horizon do you people have, anyway? Somebody says something specifically in the past tense, and you think you've proven it wrong by pointing to yesterday?

You know, we did have a political system and elections prior to 2016, right?

[apedad]

"Now that it’s a mere convenience, it’s used by the lazy, who could show up at their polling place on election day, but find that it’s a bother."

OR. . . used by efficient people who could do something better with their time besides standing in line for hours, i.e., NOT lazy.

[StellaLink_the dog]

"OR. . . used by efficient people who could do something better with their time besides standing in line for hours, i.e., NOT lazy."

Correct, I think. How many hours are saved by making voting easier and less time consuming?

[Nige]

Lots of other people will benefit from mail-in voting though – the disabled, the sick, single parents, people with more than one job or jobs with odd hours, anyone at all, in fact, suffering from physical or time-related or economic contraints that make voting difficult. And if people who are none of these things also use it? Good for them. Keep calling them lazy, though, that’ll endear them.

[StellaLink_the dog]

Making it easier for qualified voters seems to me to be a no-brainer. In Harris County, TX (Houston) for the 2020 general election there was ample early voting, a large increase in the number of early voting locations, several open 24 hours on one or more days, drive-through voting. On election day, there were many more polling locations than in previous years. It was fantastic and there was no (not even any) reliable voting integrity complaints. Didn't stop the State's Republican leadership(sic) from whining. Most notable among the whiners being our AG Ken the criminal Paxton, alleged author of the dumbest lawsuit in the history of dumb lawsuits.

[jb]

Mail in voting was usually used by Republicans at that time because it was used by shut in seniors and military personnel, who tended to be Republicans. It was used by people who NEEDED absentee voting.

Note how no one (certainly not the current batch of enraged Republicans) was making these arguments about secrecy at the time, though. Shows pretty clearly that the objection has nothing to do with the stated principle, and is instead just about which team gets to benefit.

As with almost everything in the modern Republican party, there's no actual principle involved.

[Brett Bellmore]

Is it possible that the level of security on absentee ballots wasn't as big a deal when they were a tiny fraction of all ballots, and only rarely swung elections?

But, you know, you're wrong. People were talking about absentee ballot fraud even 40 years ago. It only officially became a 'non-issue' when Democrats decided to vastly expand it.