Odds of a Contested November Election Are on the Rise

Long before the advent of COVID-19 and the havoc it is playing with the right and opportunity to vote, there were fears that another close presidential election like 2016 might create something of a crisis of legitimacy. In part those fears arose from the scattered evidence of skullduggery (some with a Russian accent) in favor of Donald Trump in 2016. But more ominous has been the increasingly evident willingness of Republicans (beginning with Donald Trump’s blithe and totally undocumented allegation that “millions of illegal votes” were cast for Hillary Clinton) to intensify their famously empty claims of “voter fraud” whenever demographic groups that lean Democratic are encouraged to cast ballots.

Now that state-run electoral systems are in chaos in the midst of a pandemic, with no assurances the conditions for normal voting behavior will return by November, the odds of a contested general election (not just by Trump, but by elements of both parties) have gone up. Election law expert Rick Hasen is sounding the alarm:

 [I]f the pandemic is still limiting our ability to move freely about society in the fall, the amount of absentee balloting is going to explode whether Congress mandates an expansion of absentee balloting or not [it didn’t!]. We have already seen the huge growth in absentee ballot requests for Wisconsin’s April 7 primary, along with legal challenges surrounding the state’s voter ID law. Vote by mail is an important step in ensuring that even if the virus keeps people away from physical polling places, millions of Americans will have a means of avoiding disenfranchisement. But it is not perfect.

Vote-by-mail ballots are more likely to be rejected than other ballots because of problems like signature mismatches. We also know that rejection rates for signature mismatches can disproportionately affect minority voters. Some states do not alert a voter whose ballot has been rejected about the rejection, failing to give the voter a chance to cure something like a purported signature mismatch. Signature matching is also a notoriously subjective endeavor. Even before the coronavirus pandemic, the issue has led to litigation over whether those voters are being unconstitutionally denied their right to vote. Some disabled voters, meanwhile, may need to vote at physical polling places because they lack the physical ability to fill out a ballot at home. These voters too risk disenfranchisement. And in the 11 states without online voter registration, even registering to vote in time for the election may pose a great challenge if government offices are closed or maintaining only limited hours.

All these issues Hasen raises are aside from the stark inequities that may govern voting-by-mail in different states, depending in part on their experience (or the lack thereof) with this kind of voting, and in part on the hostility to early voting traditionally exhibited by the Republicans who govern many states and localities.