One common-sense measure would be to dramatically expand vote-by-mail options, allowing citizens to cast their ballots from a safe distance. (While every state allows voting by mail under some conditions, only five states conduct all of their statewide elections in this manner.) On Wednesday, Sen. Ron Wyden (D-Ore.), whose state pioneered vote by mail in the 1990s, introduced legislation that would provide $500 million for states to begin making contingency plans for November’s election. If a state hard hit by coronavirus does need to transfer to a large-scale vote-by-mail operation, it would take months to buy optical scanners, put them in place and retrain poll workers. The transition requires a lot of extra preparation: The long delays counting the primary vote in California and Michigan, which have recently expanded early and absentee voting, have already shown that the system is often unprepared for tallying large numbers of pre-Election Day ballots.
Wyden’s plan is necessary and nonpartisan. But transitioning from voting in person to voting by mail would be a tectonic shift, presenting challenges that go beyond just technology or personnel, or even counting the vote. Any transition must also protect the foundational notion of one person, one vote, especially among historically disenfranchised communities. Too often, voting reforms have disregarded these citizens and their concerns.
Printed ballots can, in themselves, pose a challenge for equal access to the vote. While the Voting Rights Act requires that printed ballots be translated into multiple languages so that everyone can read election materials, the law is hardly perfect: Local governments need only provide translated ballots for groups that make up at least 5 percent of the population, or number at least 10,000 people. In many Southern states, especially, that leaves many newly naturalized citizens, or those still learning English, vulnerable to disenfranchisement. Across Texas, Louisiana and Georgia, civil rights groups have pursued costly and time-consuming litigation trying to provide access to translators for individual voters in communities where the minority population might be significant, but under the required threshold.
Sometimes, localities that are required to provide translation services, to protect minority voting rights, fail to do so. The Department of Justice’s website lists dozens of examples of violations from the past 20 years; enforcement appears to have stopped after 2015. Meanwhile, rural communities in states including North Dakota, Colorado and Iowa have slow or unreliable postal delivery, which could create an unfair barrier to the ballot box.
All this is compounded by the sad truth that, in some states, well-meaning vote-by-mail reforms have been weaponized into tools of suppression. In Arizona, which passed vote-by-mail reforms in 2007, only 18 percent of Native Americans in Arizona have mail at their homes; the courts later found that white registered voters have a rate of home mail service that is 350 percent higher. And in San Luis, a city which is 98 percent Hispanic and lacks mass transit, a major highway divides 13,000 residents from the closest post office. Many households do not have cars. As a result, Native American and Hispanic voters in Arizona had long relied on ballot collection services.
Then, in 2016, the Arizona state legislature passed a law that made it a felony for volunteer organizations to collect mail-in ballots on behalf of marginalized communities. Lawmakers renamed this practice “ballot harvesting,” and claimed that the new provision was necessary to prevent voter fraud. But any chicanery with an absentee ballot would have already been illegal under existing state law. And when a federal appeals court struck the “ballot harvesting” law down earlier this year, it noted that a state elections official had conceded that a similar law has been passed in 2011 to disadvantage Latino communities. (At the time, with the Voting Rights Act in full effect, the state backed down from that law, because it still needed to “pre-clear” any voting changes with the Department of Justice.)
In Utah, meanwhile, vote by mail has increased turnout and made voting more convenient in some parts of the state — but not so in large Navajo communities. In San Juan County, where citizens have battled voting inequities in court for decades, mail-in ballots pose an additional barrier. In some remote areas, residents must travel for hours, over poorly maintained roads, to get to the nearest post office — usually just a collection of P.O. boxes inside a gas station, and often unreliable and unsecure. Incoming and outgoing mail regularly goes missing. Navajos might make the long trip to get the mail once a month, and some elders are unable to make it at all. The Navajo language is also non-written, which makes vote by mail even harder, and reliable translation services that much more important.
Some of these inequities have been beaten back in the courts. In January, a federal appeals court overturned the Arizona law, finding a disparate impact on minorities. But that decision took years, came only on appeal, and could still be upended by the U.S. Supreme Court. During that time, the 2016 and 2018 elections came and went. In Utah, a lawsuit over vote-by-mail in San Juan County was settled in 2018 through mediation, requiring many months of litigation to resolve.
With the disruption we are already seeing to our public institutions, and the high stakes of ensuring that every citizen gets to vote, states must plan now to protect November’s electoral process from any disruption. But those plans must, in turn, protect everyone’s right to vote. They must not presume that mail-in voting is easy for everyone. And they must safeguard any mail-in process from the state governments that have shown every willingness to add additional burdens that make it harder, not easier, for many citizens to vote.