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The Canvass | October 2020

September 23, 2020

Election Experts Look Ahead

With the November general election just one month away, we’re not surprised that it’s all anyone can talk about. So, we asked a handful of election experts to talk about it more—what are they watching for, preparing for or hoping for this November?

These experts address security, voter registration, ballot processing, the role of the legislature vis-a-vis the executive branch, voter confidence and more.

Ben Hovland, Chairman, U.S. Election Assistance Commission

Election administrators have really risen to the challenge during these difficult times. The public servants that administer elections, however, can only do their best when it comes to limiting the impact of widespread misinformation and disinformation about our elections. Political campaigns and interest groups are spending billions of dollars to influence Americans, and foreign adversaries are amplifying our divisions. In the face of that, it will take Americans coming together to protect our nation, the process and voter confidence. Those who can, should help encourage Americans’ confidence in our electoral process by highlighting the great work of our election officials. Additionally, supporting efforts like the National Association of Secretaries of State’s #TrustedInfo2020 campaign are an integral part of ensuring Americans get accurate information on how to participate this year. (Note: NCSL is a partner on #TrustedInfo2020.)

Charles Stewart, Professor of Political Science, MIT

I will be watching for evidence that local jurisdictions have successfully prepared for in-person voting, by watching the wait times that emerge during early voting—a harbinger for things to come on Election Day. I’m also looking to see what the pattern of mail ballot returns will look like. It already looks like mail ballot requests will be front loaded. Will this allow local election offices to manage the surge efficiently? Finally, I will be looking to see how quickly local jurisdictions complete their vote counting, including mail and early votes. I am betting that most will prove the pundits wrong and get the mail ballots counted pretty quickly. But, if I’m wrong, it will be a long night (or week or month).

David Becker, Director and Founder, Center for Election Innovation and Research

Our research indicates that new voter registration activity took a big hit in April and May of this year, due to the pandemic and the resulting reduction in motor voter registrations and third party efforts. While the summer saw some rebound, we still haven’t seen a complete recovery from the deficit created in the early stages of the pandemic, and new voter registrations for the year are still down compared to 2016. However, there is hope—in September, the 30 states in the Electronic Registration Information Center are sending out mailers to approximately 17 million eligible but unregistered citizens, including around 7.5 million unregistered citizens in the states of Florida, Georgia, Michigan and Texas. We expect this will result in millions of new registered voters, mostly registering via efficient online voter registration, well before the registration deadlines this year. This is the largest nonpartisan voter registration outreach ever done by government itself, and we expect it to be extraordinarily effective.

David Kuennen, IT Cybersecurity Specialist, CISA Election Security Initiative

Auditability and technology issues are among the many things I will be watching for in November. Regarding auditability—what percentage of voters will cast their ballots using paper-based voting systems? Will it surpass 95% as some predict? Most jurisdictions that recently used paperless DREs have replaced them, and the expected increase in mail-in voting will further increase paper ballot usage in November. This will be an important marker of progress since 2016 towards universal auditability. As for technology issues—will election officials be able to quickly respond and effectively communicate with the public when technology issues inevitably occur on and around Election Day? People can assume the worst (cyberattacks, voter suppression, etc.) when election technology does not function as expected, and malfunctioning technology is a surefire way to grab headlines or generate re-tweets—which malign actors are sure to amplify. How election officials and their partners respond to such issues will play an important role in separating fact from fiction and combatting any dis- or misinformation in this area.

Doug Chapin, Director of Election Research, Fors Marsh Group

The 2020 election should be the final warning shot for policymakers in Washington, D.C., and in state capitols across the country to think hard about how we fund election administration in the United States. The pressures created by the COVID-19 pandemic—including both the basic need to purchase masks, hand sanitizer and other materials to protect voters and election workers, plus larger efforts associated with temporary or permanent shifts to increased voting by mail—have put a spotlight on the system (or lack thereof) for authorizing and allocating funds to support the election process. Here’s hoping Congress and state legislatures are ready to use the 2020 election experience to consider and enact new approaches—such as dedicated funding streams, standing grant programs or other vehicles—that take the guesswork out of state and local election officials’ efforts to pay for the costs of administering our nation’s elections.

J. Christian Adams, President, Public Interest Legal Foundation

New registrations can be a misleading indicator of outcome. Right now, Republicans are wildly outpacing Democrats in key swing states, including 7 to 1 in Pennsylvania. The biggest issue facing November’s election is the chaos and potential disenfranchisement caused by a push for mail ballots. The 2020 primaries have produced worrisome data—namely thousands of rejected and lost mail ballots. In Nevada, over 7,000 ballots were rejected for defects and another 200,000 went to bad addresses. Election systems should be stable and certain, and mail ballots hardly provide certainty and stability.

Jennifer Morrell, Consultant, Democracy Fund

I’ll be keeping a careful eye on ballot accounting practices—the procedures used to verify that the total number of ballots cast equals the number of voters given credit for voting. These procedures provide a way to consistently and accurately record the number of ballots at a given point in time, document acceptable differences and flag unexplained discrepancies. They apply equally to in-person voting and voting by mail or absentee voting. By requiring an accounting, you reduce the chance of voted ballots being misplaced and left uncounted. Ballot accounting also includes chain of custody procedures, documentation that indicates when and who took possession of ballots each time they are physically moved. This evidence can relieve uncertainty as to whether a ballot has been tampered with. Ballot accounting is one way we can increase trust in our elections and should become a standard part of every post-election audit practice.

Kathleen Hale, Professor of Political Science, Auburn University

How we understand local election office resources will be critical post-election 2020. During election 2020, poll site management strategies will be very visible, and we will see how offices address potential voter confusion about in-person return of mailed ballots and increased scrutiny from poll watchers and outside groups, in addition to ever-present voter registration questions. In parsing what election 2020 means, it is important to distinguish issues that embody controversial policy choices from those that stem from lack of local resources. Federal funding to state election offices for essential cybersecurity and COVID-19-related services has been most welcome and yet local election offices generally operate on a shoestring when considered against county operating budgets (the fundamental source of election funds). Election 2020 will tell us a great deal about whether those resources are adequate.

Ohio Senator Matt Huffman (R), Vice-Chair of NCSL’s Redistricting and Elections Standing Committee

I will be watching to see who Ohioans, and voters across the country, choose as their representatives because this particular election can help restore the proper balance among the different branches of government. Over the past six months, we have witnessed unprecedented use of executive power in Ohio and in states across the country. And during the 12 years I have served in the Ohio legislature, I have witnessed firsthand how the people’s representatives in legislatures continue to be bypassed. We’ve seen it in Washington, D.C. for years, but as the pandemic has continued on, we now see the same phenomenon occurring at the state level. My hope for the upcoming election is that voters make their voices heard by electing strong representatives to state legislatures and Congress who appreciate how the legislative branch of government’s role is to make the policies, while the executive branch is there to execute those policies.

New Hampshire Senator Melanie Levesque (D), Co-Chair of NCSL’s Redistricting and Elections Standing Committee

This year, 65-85% of voters will request absentee ballots due to COVID-19. Through the passage of HB 1266, the New Hampshire Legislature enabled voters to request an absentee ballot citing concern for COVID-19 and request an absentee ballot for the primary and general elections with one form. The legislation also gave our election officials the ability to pre-process absentee ballots. These changes, along with the addition of online voter registration and automated registration, must become permanent solutions. Many town and city clerk offices are closed or have limited hours because of COVID-19, making it difficult to register in person. We are fortunate to have same day registration, but we must reduce the time spent in line at the polls for public safety. No-excuse absentee ballots work, and pre-processing saves valuable time on election night. Feedback from election officials will help fine-tune these processes as we move towards more secure and modern elections.

Michael McDonald, Professor, University of Florida

The November 2020 general election will likely see record overall turnout for a modern American election and the greatest share of voters casting ballots before Election Day, particularly by mail. With so many voters casting mail ballots for the first time, there will be problems. Voters unfamiliar with their state’s mail ballot process will make mistakes. Election officials will be stressed by the unusually large number of mail ballot requests and actual ballots. To monitor these issues, I curate an early voting tracker. I’m tracking statewide mail ballot requests and returns, and—where data are available—I provide maps and statistics for a state’s localities. Depending on the state, these data include early voting activity by party registration, gender, age, race and past voting history. In a few states, I further track rejected ballots. As Election Day approaches these data will provide insights as to expected overall November turnout.

Ned Foley, Director of Election Law at Ohio State

Will the presidential election be settled in every state by December 8, the so-called “Safe Harbor Deadline” (specified by federal law in 3 U.S.C. § 5)?  If so, that will mean that the presidential election will be decided according to the count of the popular vote in each state, as intended under each state’s laws. In this respect, the election will have been successful even if it took all five weeks from Nov. 3 to Dec. 8 to achieve this definitive determination of the electorate’s choice in all states. By contrast, if there remains a dispute over who won the presidency after Dec. 8, then the election enters a whole new and precarious phase in which Congress will be required to decide the election’s winner when it meets on Jan. 6. Although Congress adopted a procedure for this situation in the Electoral Count Act of 1887 (3 U.S.C. § 15), it has never been tested, and given uncertainty over its meaning one hopes that it remains untested again this year—with the election’s outcome uncontested after the Safe Harbor Deadline of Dec. 8.

Rebecca Green, Co-Director of William and Mary’s Election Law Program

One of the issues I’ll be watching closely in the lead up to November is the impact of COVID-19 on election transparency. Our democratic system relies on an open and transparent election process. State statutes mandate that representatives of candidates, political parties, citizen groups and independent organizations may observe the election process at various stages. I’m wondering how state transparency processes will play out in the age of COVID-19 when fewer people may be willing to step forward to observe in person. I am hoping state election officials prepare for safe oversight mechanisms—especially through the use of technology. This year it will be more important than ever to ensure the process is transparent to help secure public faith in outcomes.

Tammy Patrick, Senior Advisor for Elections, Democracy Fund

 Conducting an election in 2020, in the midst of a global pandemic, has laid bare systemic challenges to the resiliency and flexibly of our election administration policy. There are a few general areas to focus on—many of them around what voters’ and election officials' options are. First, where can polls be located? States with rigid requirements around the type of facility that can be used, where the polls must be located and the number of voters registered in an area (without consideration of how many may be voting by mail or early) will have a more difficult time adjusting in the COVID-19 environment. The same holds true for who can be a poll worker. States that allow for youth poll workers, workers who do not live in the precinct and a mixture of party affiliations (where applicable) rather than rigid partisan roles will all be able to staff the polls more successfully. Third, voters who have options in how and when to vote will be better served provided the uncertainty of the times. Lastly, states that have adjusted their laws around when voters can request and return ballots and when election officials can process absentee applications and ballots will most likely not find themselves in the headlines around ballot rejections and unfulfilled requests. The Postal Service recommends voters return their ballots by mail at least one week before they are due, yet more than 20 states allow a voter to request a ballot after that time. This sets the false expectation that as long as voters request by the deadline things will be fine. States allowing for prepayment of postage, a postmark or other USPS data demonstrating the voter mailed the ballot before the close of the polls and options for voters to drop off the ballot in person will see far fewer ballots be rejected based on their state code.


Legislative Action Bulletin

With almost all state legislatures having completed their sessions for the year and the election fast approaching, here’s a look back on what has been an unusually busy year in terms of changes to election policy. This year alone, at least 30 states have enacted legislation making changes to their absentee and mail voting policies. Legislation has been concentrated in the areas of mailing out ballots and ballot applications, expanding eligibility, changing ballot processing and counting timelines, returning ballots,  and emergency powers over elections.

Mailing Ballots and Ballot Applications

As COVID-19 began to affect elections across the country, at least five states responded by adopting new policies to increase mail voting. California (AB 860) and Nevada (AB 4) both made the decision to mail ballots to all eligible voters in their states for the 2020 election. Other states opted to send mail ballot applications to all eligible voters. Delaware (HB 346), Illinois (SB 1863) and Massachusetts (HB 4820) did so through legislation.

Expanding Eligibility

In response to the pandemic, five states chose to expand the eligibility criteria for absentee voting: Connecticut (HB 6002), Missouri (SB 631), New York (SB 8015), South Carolina (HB 5305) and Virginia (HB 1).

North Carolina (HB 1169) and Oklahoma (SB 210) loosened requirements associated with absentee voting by reducing the number of required witnesses on an absentee ballot.

Returning Ballots

Due to the increased volume of absentee and mail voting, along with voters’ concerns about the efficiency and reliability of the postal service, multiple states passed legislation this year addressing the process of returning a ballot.

Nebraska (LB 1055) and New Jersey (AB 4475) chose to add options for ballot drop boxes so voters may return ballots by hand.

Mississippi (HB 1521), New Jersey (AB 4475) and New York (SB 8799) extended their ballot receipt deadlines and will now allow ballots postmarked by Election Day to be received within a certain timeframe after Election Day.

Oklahoma (SB 1779) and Utah (SB 6007) passed laws restricting “ballot collection,” or who can return ballots on behalf of a voter.

Finally, Wyoming (SB 56) enacted a law allowing special absentee vote centers to be set up in the state’s counties.

Ballot Processing and Counting

In response to the increased volume of absentee and mail ballots, timelines for processing and counting these ballots were also a hot legislative topic.

Idaho (SB 1001), Louisiana (SB 397), Minnesota (HB 3429) and New Hampshire (HB 1266) all passed legislation allowing election officials to begin processing ballots before Election Day.

Illinois (HB 2238) also adjusted its process for election judges to reject ballots, while Michigan (HB 5141) allowed municipal clerks to make agreements with clerks in other cities to create combined boards to count absentee ballots.

Emergency Powers over Elections

The COVID-19 pandemic also caused state legislatures to reexamine the emergency power over elections granted to state governors and election officials. Alaska (SB 241), New Mexico (SB 4) and Vermont (SB 348) chose to expand the powers over elections given to state officials, while Iowa (HB 2486) passed legislation limiting these powers.

Miscellaneous

New Jersey (AB 4276) and New York (SB 8370) added provisions to allow voters to “cure” or solve problems with their ballot signatures and therefore ensure their ballots are counted.

Maryland (HB 37) will now require ballot return envelopes to include prepaid postage.

New legislation in Colorado (HB 1313) requires that ballots be sent within two days of a new registration processed between 15 and eight days prior to the election.

Rhode Island (SB 2598) will allow emergency mail ballot applications at county election offices, allowing the voter to then cast his or her ballot in person.

Louisiana (SB 75) added prohibitions on where absentee ballots can be sent and limited who may be a witness to a ballot.

Finally, West Virginia (SB 94) will allow voters with disabilities to vote by electronic absentee ballots.


From the Chair

This month, we spoke with Washington, D.C. Councilmember Charles Allen (D). He represents Ward 6, which is located in the heart of D.C. and includes the historic Capitol Hill neighborhood. He has held this seat since 2015 and chairs the Council Committee on the Judiciary and Public Safety. This interview has been edited for length and clarity.

Tell us about how elections relates to your work on the Council Committee on the Judiciary and Public Safety.

I have always focused energy on how to make election changes and campaign finance reforms, including modernizing elections and increasing accountability. So I made it a priority for elections to be part of this committee’s portfolio. It’s important to me to help shape how democracy works.

What’s something that your peers in the states might not know about how elections are run in D.C.?

I wish everyone knew that, for election purposes, D.C. is a state. We administer our elections in the exact same way as a state elections authority would—from presidential races all the way down to local neighborhood elections.

And that’s important to know because D.C. should be a state. We have more people in D.C. than Wyoming or Vermont, and we’re creeping up on North Dakota and Alaska. But we have no federal representation, and we feel strongly that should change.

The nation seems to be moving to more mail voting—how does that work for your voters?

In our June primary, people had to request ballots—fill out a form, return it, get a ballot and then return that. Some parts of the city really embraced voting by mail. In other parts, folks didn’t trust the postal service and wanted to vote in person. We saw a lot of confusion. The polls closed at 8 p.m., but the last voter didn’t cast their ballot until after midnight. So some people were waiting all day.

For the 2020 general election, our Board of Elections is mailing every registered voter a ballot.

As we shift to vote by mail, a lot of people will take that up. But it will take time. In places with a lot of voting by mail, it took time and education to make that transition. We skipped past those this year.

Like a lot of other jurisdictions, we’re also struggling with how we help people vote early and vote safe, and at the same time adequately plan for the in-person voting we know will take place. On Election Day, even with the best of planning, there will be lines.

What are you most proud of about elections in D.C.?

What I’m most proud of right now is that this is our first election cycle with Fair Elections, our public finance program. It levels the playing field and focuses on small donors—candidates can ask people for just $10 dollars, which is then matched five times. Almost every candidate opted in.

A lot of candidates who never would have had money to run or get their message out can run now. This doesn’t guarantee they’ll win, but we’ve seen more candidates and more diverse candidates running this cycle than we have in the past. And I think that’s great.

Is there anything else you think your peers in other states would find interesting?

I’m curious to see what election changes will make sense, pandemic or not. D.C. had a traditional precinct model, but this year we’re going to full vote centers, which allow voters to vote at any location. Is that something that will stick moving forward? A lot of these changes are probably just good for democracy.

Also, D.C. just allowed residents incarcerated for felony convictions to vote—joining Maine and Vermont in never taking away that right.


How can I help my constituents vote?

Every election, our team sees an influx of emails from voters seeking information on when, where and how they can vote. Elected officials are likely receiving similar questions, so we’ve rounded up a few messages and resources that legislators—and others on the frontline of democracy—can use.

“Make a plan for voting.” That means deciding how to vote (by mail/absentee ballot or in person), when to vote (early or on Election Day) and where to vote (at a polling place, vote center or by returning a ballot to an election office, polling place or drop box).

“Election results may not be available on election night.” Counting mail/absentee ballots takes time, and voters should be prepared to go to sleep on election night without knowing the final results up and down the ballot.

“Rely on election officials for election information.” Remind constituents that local election officials should be their number one source for election information. Encourage voters to follow #TrustedInfo2020, a hashtag created by the National Association of Secretaries of State to promote accurate election information. Voters can also use the US Vote Foundation’s directory to look up their local election official’s contact information and website.


Worth Noting

Conducting Safe Elections During a Pandemic

The Rand Corp. has released a new series on elections as part of its “Countering Truth Decay” initiative. The series focuses on conducting elections safely during the COVID-19 pandemic. Materials include discussions of policy changes to minimize personal contact and reduce crowds.

Improving the Integrity of Absentee and Mail Balloting

The Lawyers Democracy Fund has published a new paper reviewing the history of absentee and mail voting, its increased use in recent years and pros and cons related to that expansion. The paper recommends, among other policies, strengthening ballot collection laws and requiring more identification information from absentee and mail voters.

National Task Force on Election Crises

The National Task Force on Election Crises is a cross-party collection of more than 50 experts dedicated to ensuring a free and fair 2020 general election by recommending responses to a range of potential election crises. The task force’s election road map includes lessons learned from this year’s primary elections as well as recommendations for the November election.

Detroit Mayor Will Make City Employees Available as Election Workers

In response to a lack of election workers caused by COVID-19 and concerns over delays in processing an increased numbers of mail ballots, Detroit Mayor Mike Duggan (D) will essentially shut down his city for two days to allow city employees to assist with the election. Employers Blue Cross and Quicken Loans have also agreed to make their employees available to the clerk’s office if needed.

Monthly Cybersecurity Update

ransomware attack against a Texas software company has officials and experts worried in advance of the November election. Tyler Technologies makes software that cities and counties use to display election results. Ransomware attacks are one of the chief concerns on the minds of government cybersecurity professionals, who worry that local governments could be particularly susceptible to these tactics.

Election Night! Board Game

The Election Night! board game from Semper Smart Games “teaches kids to think big things while mastering the hardest to learn addition and multiplication facts, U.S. state geography, and the mechanics of the Electoral College.” The game won the 2019 Parents Choice Gold Award, among other accolades. Purchase online here.


From the NCSL Elections Team

With one month until the election, NCSL is providing comprehensive coverage of state legislative races, ballot measures and election administration with our State Elections 2020 resource. This year, 5,876 regularly scheduled legislative races (plus several dozen special elections) are on the ballot in 44 states.

Our team also has a new resource on policies that will be in place for the general election, as well as a continuing series of “State Elections 2020” blog posts.

And if you have any questions or something we need to know, please get in touch.

—Wendy Underhill, Brian Hinkle and Mandy Zoch

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