Ballot Integrity Project

by Benjamin Barr

Mail-In Voting and Absentee Voting Concerns

On March 13, 2020, President Trump proclaimed a national emergency in response to the Coronavirus outbreak.¹ Since then, many states, including Wyoming, enacted emergency declarations and a variety of stay-at-home or shelter-in-place orders.² States continue to struggle with voting during this national emergency, with many considering the enactment of mail-in voting or the expansion of absentee voting.³ But a rush in this direction risks the very integrity of the ballot due to increased errors and electoral manipulation.

1. The Distinction Between Mail-In Voting and Absentee Voting

Absentee voting is the process by which voters request a ballot to be sent to their residence, with some states requiring an excuse to do so and others allowing for no-excuse absentee voting. Mail-in voting is different in that the government sends every registered voter a ballot by default. At present, Wyoming law permits for absentee voting without an excuse and does not authorize mail-in voting.⁴

2. Voting Rights and Voting Integrity Are Required by the Federal and Wyoming Constitutions

The U.S. Constitution provides that oversight of elections is a responsibility held by the states.⁵ Though there are specific amendments directly implicated in voting rights, most lawsuits regarding voting center on the Equal Protection Clause of the Fourteenth Amendment, statutory claims, and First Amendment free speech issues. The federal government also exercises some additional oversight of elections through statutes that cover vast areas like civil rights discrimination in voting, voter intimidation provisions, fraudulent voting and registration, mail and wire fraud, and more.

For state constitutional purposes, the Wyoming Constitution calls for the "[p]urity of elections to be provided" by the legislature.⁶ The people of Wyoming amended the state constitution in 1944 to provide for the right to engage in absentee voting. The Wyoming Supreme Court has opined that the right to vote is fundamental and entitled to "strict protection by the courts."⁷

On either side of the constitutional equation, the right to vote and purity of elections, there are important constitutional considerations. Undoubtedly, voters enjoy Equal Protection claims to the right to vote and government does not enjoy a freehanded ability to discriminate against voters and diminish voting rights.⁸Advocates who favor the expansion of voting with lax safeguards emphasize America's distant past of discrimination, and insist integrity measures are veiled attempts to revive discrimination. But the people have an interest in deterring and detecting voter fraud, concerns affirmed by not only long-past but recent history.⁹ Indeed, the 2005 bipartisan Commission on Federal Election Reform agreed that deterring and detecting voter fraud remain important concerns.¹⁰

3. The Dangers of Expanding Absentee Voting or Moving to All Mail-In Voting

According to the Commission on Federal Election Reform, absentee voting is more susceptible to fraud than in-person voting. It is also subject to problems with delivery and counting. In 2016, the Election Assistance Commission reported that only 80.1 percent of absentee ballots sent out were returned.¹¹ Dangers related to all mail-in voting or substantially increased absentee voting include a lack of security, increased voter fraud, and ballot mishandling. These dangers are particularly acute because absentee voting often implicates the disabled and elderly—who are particularly susceptible to intimidation, deception, and fraudulent vote harvesting.¹²

a. Voter Fraud

Absentee voting and mail-in voting both present the same concern: there is far less certainty that the person who signed the envelope is the person to whom the ballot was sent. In one review of Department of Justice enforcement cases, stealing ballots from mailboxes or having individuals steal the votes of elderly and disabled persons occurs with some frequency.¹³ There are loopholes in Wyoming law that open the door to just this kind of fraud. State law does not protect against ballot harvesting¹⁴ and verification of absentee voters is modest. On this basis alone, Wyoming should be hesitant to attempt a radical, fast expansion of absentee voting.

A handful of states have implemented laws regulating vote harvesting to protect the integrity of their elections.¹⁵ Wyoming should do the same. Other states require a voter to provide a copy of his identification for absentee voting or that a witness attests to the absentee voting. Wisconsin, for example, requires that voters include a copy of their identification to vote absentee.¹⁶ At a minimum, Wyoming should only consider the expansion of absentee voting if it includes similar safeguards, but these should be enacted even for Wyoming's current absentee ballots.

b. Burdens, Negligence, and Error Rate

A study conducted by the Public Interest Legal Foundation found that some 28 million mail-in ballots went missing in the past decade.¹⁷ One reason this occurs is when ballots overload the Postal Service. This occurred recently in Wisconsin, where three tubs of absentee ballots were found at a post office after polls closed.¹⁸

Similar logistical problems accompany absentee balloting. Radically increasing absentee voting requires a sea change in equipment and planning, purchasing high-speed scanners, and hiring and training people to verify large numbers of ballots and signatures. All of this must be done under a short time window. The Election Assistance Commission has compiled its own extensive guide for states in planning for mail-in and absentee voting and the requirements are daunting.¹⁹ Any move to radically increased absentee voting must begin well in advance to ensure training and equipment is in place for a stable election, a window that is already closed for the 2020 elections in Wyoming.

4. Conclusion and Recommendations

Even some opponents of protections against voter fraud admit that absentee ballots present the most opportunity for voter fraud.²⁰ In the time of a national crisis, states should be wary to rush to a system that is ripe for abuse. Rather, as when the United States faced crises and pandemics in the past, appropriate health measures should be put in place to accommodate safe voting.

We adopt these particular recommendations as Wyoming sorts out its approach to voting in 2020:

Use existing polling places with social distancing and regular sanitization in place.
To avoid delays and burdens, analyze the sufficiency existing polling places and provide for additional polling places if warranted.
Maximize use of early voting provisions already established in the law to space out voting while protecting the public health.²¹
If Wyoming entertains a larger absentee voting program, it must be accompanied with safeguards:
- Prohibit vote harvesting;
- Adopt stricter measures to verify the identity of absentee voters, such as requiring proof of identification or a third-party witness to confirm a voter's identity; and
- Ensure sufficient equipment and staff are in place as well as training well before absentee ballots are sent out.

Wyoming need not sacrifice the integrity of its elections to protect the safety of its citizenry. In-person voting in the presence of election officials remains the safest way to protect the integrity of the ballot. Wyoming should continue to offer sufficient in-person polling places while taking sensible steps to prevent any spread of coronavirus. Any steps toward implementing expansive absentee voting should be accompanied with strict safeguards not currently implemented in the law.

¹ Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, White House, Mar. 13, 2020, available at ² See Wyoming Governor's Orders related to COVID-19, Wyo.gov, available at https://covid19.wyo.gov/governors-orders. Similarly, Wyoming law allows the Secretary of State to issue directives concerning elections where a declared emergency interferes with voting. Wyo. Stat. §22-2-121(f).

³ Governor Gordon calls Special Session of Wyoming Legislature to help respond to COVID-19 pandemic, Wyo.gov, May 7, 2020, available at https://governor.wyo.gov/media/news-releases/2020-news-releases/governor-gordon-calls-special-session-of-wyoming-legislature-to-help-respon.

⁴ Wyo. Stat. §§ 22-9-101 to 22-9-125.

⁵ U.S. Const. art. I.

⁶ Wyo. Const. art. 6, §13.

⁷ Brimmer v. Thompson, 521 P.2d 574, 578 (Wyo. 1974).

⁸ See, e.g., Crawford v. Marion County Election Bd., 553 U.S. 181, 189–91 (2008).

⁹ Id. at 191.

¹⁰ Building Confidence in U.S. Elections, at 18–33 (§ 2.5) (2005), available at https://www.legislationline.org/download/id/1472/file/3b50795b2d0374cbef5c29766256.pdf

¹¹ The Election Administration and Voting Survey 2016 Comprehensive Report (2016), available at https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf

¹² "Ballot harvesting" refers to a situation where a third party collects ballots from others and delivers them to election officials. In 2019, the North Carolina State Board of Elections overturned the election results for the Ninth Congressional District in 2018 due to illegal ballot harvesting. See State Board unanimously orders new election in 9^th Congressional District, N.C. State Bd. Of Elections, Feb. 25, 2019, https://www.ncsbe.gov/Press-Releases?udt_2226_param_detail=229

¹³ Hans A. von Spavkosky, Vote-by-Mail Makes Fraud and Errors Worse, Heritage Found., Apr. 2, 2020, https://www.heritage.org/election-integrity/commentary/vote-mail-makes-fraud-and-errors-worse

¹⁴ Wyo. Stat. § 22-9-113 provides that absentee ballots shall be mailed "or delivered to the clerk," but does not specify proper means of delivery or agents of delivery.

¹⁵ See, e.g., N.C. Gen. Stat. § 163-226.3.

¹⁶ Wisc. Stat. §§6.87, 6.88.

¹⁷ Report: 28 Million Mail Ballots Went Missing in Past Decade, Pub. Int. Legal Found., Apr. 13, 2020, available at https://publicinterestlegal.org/blog/report-28-million-mail-ballots-went-missing-in-past-decade/.

¹⁸ Patrick Marley, Alison Dirr & Mary Spicuzza, Wisconsin is discovering problems with absentee ballots, including hundreds that were never delivered, Milwaukee J. Sentinel, Apr. 8, 2020, available at https://www.jsonline.com/story/news/politics/elections/2020/04/08/wisconsin-election-3-tubs-ballots-found-mail-processing-center/2971078001/.

¹⁹ Vote by Mail Project Timeline, Election Assistance Commission, available at https://www.eac.gov/sites/default/files/electionofficials/vbm/VBMProjectTimeline.pdf

²⁰ John R. Lott, Jr., Heed Jimmy Carter on the Danger of Mail-In Voting, Wall St. J., Apr. 10, 2020, available at https://www.wsj.com/articles/heed-jimmy-carter-on-the-danger-of-mail-in-voting-11586557667.

²¹ Wyo. Stat. §§ 22-9-105 and 125.

Ballot Integrity Project

Related Posts