California’s 2020 all-mail election, explained

“The health concerns of forcing people into in-person voting during a pandemic are all too real,” said Silicon Valley Democratic Assemblyman Marc Berman.

That’s why Democratic lawmakers, the governor and even some Republicans in Sacramento want to make sure that every registered and active voter automatically gets a ballot in the mail before November 3 — no signing up required.

It’s a two-part plan:

1. County election officials must send a ballot to every registered and active voter in the state.

A new law authored by Berman lets counties get a jump-start processing early votes, and instructs them to count ballots they receive up to 17 days after the polls close — as long they are put in the mail on Election Day.

2. For those who need in-person assistance; didn’t get their ballot as planned; don’t have a fixed address; or who need to replace a ballot that’s been torn, lost, pet-chewed or food-splattered, counties still need in-person voting options.

Newsom has penned an executive order to that effect. It’s been challenged in court, but the Legislature is considering legislation that would do the same thing.

“One way or another,” said Orange County Sen. Tom Umberg, “we’re going to have a different kind of election in the fall.”

Probably. California is famously slow at tallying ballots — though election administrators might prefer “famously careful.” The rules that make it easy for Californians to vote from home, register to vote or change party affiliation on Election Day mean that county officials regularly have to spend weeks after the polls close checking signatures and processing registration applications.

In both 2016 and 2018, it took the state nearly 30 days to count every last ballot.

With the number of mail-in applications expected to increase by upwards of 35% this year, the count could slow even further. And given that Republicans appear less enthusiastic about remote voting — more on that below — experts such as UC Irvine election law professor Rick Hasen worry that an inordinate number of race outcomes will shift from the GOP to the Democrats as late absentee ballots are counted, providing a windfall for conspiracy theorists.

A new state law is giving counties a small work-around: Registrar offices can begin processing ballots as soon as they arrive — but still no counting until the polls close.

Under the pending legislation and Newsom’s executive order counties can choose as they plan the November election:

• Option A: Hold in-person voting just as they did during the March primary. For most counties, that’s roughly one polling place per 1,500 voters.
• Option B: Pare down the number of in-person voting locations to one per 10,000 voters — but keep them open for four days leading up to Election Day to allow spaced-out early voting. These counties would also have to deploy a certain number of ballot drop boxes, opening them up by early October.

In the March primary, 15 counties had at least 100 precinct locations. San Diego County had 1,361. That’s a lot of venues to rent out, particularly if the pandemic takes senior homes and schools off the table.

Lawmakers may allow counties to rent out businesses focused on selling alcohol. So Joe Holland, Santa Barbara County’s registrar, is asking hotels if the county can use their ballrooms. In San Luis Obispo County, registrar Tommy Gong hopes to rent a vacant airport terminal. Another concern: A typical poll worker is a retiree — a member of a high-risk group for COVID-19.

All of those logistical obstacles are pushing medium-to-large counties toward Option B. Which has its own complications.

Locations will need to be larger, narrowing the list of possible venues. If the centers will be open to any registered voter in the county, regardless of where they live, they will have to be able to print ballots on demand — meaning more sophisticated equipment and tech-savvy poll workers. Three days of early voting will mean three times the staffing demand.

And with either option, hosting an election in the COVID era will require rigging up each location with cough and spittle guards; spacing out equipment; and stocking up on cratefuls of masks, gloves and hand sanitizer.

If you live in one of 18 California counties where voters already get a ballot in the mail, this should all sound pretty familiar.

In 2016, California passed the “Voter’s Choice Act” permitting counties to send a ballot to every voter while keeping a reduced number of in-person voting options available for those who need them.

Three sparsely populated counties — Alpine, Sierra and Plumas — have deemed in-person voting impractical and got dispensation from the state not to operate physical polling places at all.

Under the Democratic plans, all counties may adopt something similar to the Voter’s Choice model. One major difference: The new system would require the centers to open the Saturday before Election Day, rather than 10 days before.

In 1863, Gov. Leland Stanford, an ally of President Lincoln, signed a law giving soldiers stationed in battlefields the right to vote remotely in California’s elections.  Like virtually every expansion of the franchise before or since, the new law was immediately the subject of partisan bickering, litigation and racist invective.

California Democrats who believed — accurately, it would turn out — that soldiers would favor their Republican commander in chief in the upcoming presidential election labeled the bill an act of partisan war. An article in the pro-Confederate Los Angeles Star warned that officers would order soldiers to vote for Lincoln, taking the county one more step “towards military despotism.” And the state Supreme Court ruled against the expansion, saying if the Legislature could authorize battlefield voting, what would stop them from acting as if “all colors should be considered, taken and held to be white”?

It wasn’t until 1922 that voters narrowly approved Proposition 22, giving the Legislature the right to legalize absentee voting, which it did the following year. But mail-in voters needed a good excuse: “occupation requiring travel or federal or state military or naval service.”

That list of permissible excuses grew until 1978, when California became the first state to allow any registered voter to vote remotely — no excuse required. Since then, the popularity of mail voting has swelled.

For a preview of what California’s mostly all-mail November 2020 election might look like, consider that bastion of electoral radicalism that lies to our east, Utah — where by 2018 every registered Utahn received a mail ballot at home. Utah is a notable reminder that vote-by-mail systems — the president’s recent protests and misstatements notwithstanding — are not solely popular with liberals and Democrats.

Already California, like Nebraska and North Dakota, allow counties to hold all-mail elections with in-person options if they like.

Oregon and Washington also hold all-mail elections — and they really mean “all-mail.” With the exception of county courthouses, they offer few in-person options.

In the 2018 general election, nearly a quarter of Americans cast ballots remotely. And in the COVID-19-tinged reality of 2020, we are likely to see a dramatic surge in absentee and mail ballots. In Nevada’s recent June primary, for example, 98% of ballots were cast by mail.

It isn’t.

It’s not that vote-by-mail ballots have never been used to distort the outcome of an election. Most supporters of vote-by-mail will acknowledge that once a ballot leaves the relative security of a polling station, it is in fact more vulnerable to misuse than those that are cast the old fashioned way.

But in either case, misuse and abuse seem to be really rare.

“On a scale of one to 100, it’s a five, as opposed to a one,” said Justin Levitt, a constitutional law professor at Loyola Marymount University. “It’s slightly more problematic in that there is slightly more room for potential abuse. But that should not be confused with ‘it’s problematic.’”

Take the example of Angel Perales, the city manager of Cudahy in Los Angeles County who pleaded guilty to filtering out incoming absentee ballots that favored non-incumbents during the city’s 2007 municipal election. In the conservative Heritage Foundation’s “Election Fraud” database, it is the only documented instance of California absentee vote fraud in four decades.

Nationwide, the database includes 206 cases of mail-in ballot fraud out of 1,285 verified cases of improper voting of any kind. The Heritage Foundation describes its database as a sampling. But more thorough analyses have produced similarly low numbers. On the high end, a Washington Post analysis found one “potentially fraudulent ballot” for every 40,000 ballots cast.

FEC Commissioner Ellen Weintraub made the case on Twitter:

A report by voting rights researchers at UCLA and the University of New Mexico, noted that “clerical or typographical errors, poor signature matching, voter mistakes, and jumping to unwarranted conclusions with a limited amount of information account for most voter fraud allegations.”

“The more common type of election fraud is one-off stupidity,” said Levitt. But he also stressed that “more common” does not mean “common.”

“I mean, Halley’s comet versus a legitimate UFO.”

Note: On its 76-year elliptical circuit around the solar system, Halley’s comet only spends 60 days or so as a notable presence in the night sky. That works out to one month out of 456 — uncommon, but still orders of magnitude more common than voter fraud.

Both the president and his attorney general, William Barr, have warned that foreign governments might get in the ballot printing game. These hostile powers could, in Barr’s telling, “easily make counterfeit ballots, put names on them, send them in.”

Barr himself has admitted there’s no evidence malicious actors are actually planning this. Election experts say they would have an exceedingly tough time if they tried.

California counties contract with a small handful of certified ballot printers. Each printer is required to use special paper and emboss each ballot envelope with anti-counterfeit graphics. The envelope gets its own U.S. Postal Service-certified identification marking, a color scheme and encrypted design specific to the county.

Each ballot envelope also gets a voter-specific barcode to be scanned by a county election official before it’s opened. When a ballot is checked, the voter’s signature on the back has to match the one stored in the county’s database. (A recent law requires county officials to contact a prospective voter about an iffy signature match before tossing out their vote entirely.) Starting this year, anxious voters can track their ballots online from their mailbox to their county election office.

With all those safeguards in place, said Brad Stiers, president of ProVoteSolutions, which prints the ballots for 21 counties in California, it would be very hard for anyone to mock up a single successful counterfeit, let alone the hundreds or thousands required to swing an election.

“Every ballot is like a dollar bill,” he said. “You would somehow have to steal the design and get that specific ballot image with the right precinct information for a particular voter and then forge their signature and get it back into the mail stream.” And that’s before it even reaches a county office, where they will check for duplicates and fakes.

Levitt of Loyola Marymount called the president’s theory “coocoo bananas…(it’s) the plotline to a poorly-researched middle school creative writing essay.”

Every county maintains a list of registered voters, called a voter roll. Under federal law, counties are supposed to keep those lists up-to-date, removing duplicates, correcting errors and nixing names when a person dies or moves, or after official mail to that address is returned as undeliverable.

But some counties have failed to keep up.

Last December, Los Angeles County was required to remove 1.5 million inactive voters from its roll as part of a legal settlement with the conservative legal nonprofit Judicial Watch.

State election regulators advise counties to maintain separate “inactive voter” lists, so that if someone who hasn’t voted in many years unexpectedly shows up on Election Day, they can be given a provisional ballot that will be checked later. Because the inactive list might include people who have moved out of the country, adding together a county’s active and inactive lists can sometimes produce numbers in excess of the number of residents, according to Census data. Judicial Watch has said this enables double-voting.

Election authorities respond that inactive voter lists simply serve as a rarely used “fail-safe.” They also argue that registered voter lists, which include active service members, people who are traveling abroad and those who might temporarily live elsewhere, aren’t directly comparable to census estimates. “Bad math,” is how Democratic Secretary of State Alex Padilla put it.

Election experts also say even if a ballot ends up at the wrong address, barcodes and signature-matching requirements should ensure that only registered voters are allowed to vote. That premise was put to the test earlier this year when more than 2,600 voters in San Luis Obispo County mistakenly received duplicate ballots before the March primary election. Any duplicates sent in were set aside, according to Gong, the county’s top election official.

Rick Hasen of UC Irvine said via email there’s a trade-off between accuracy and access. Earlier this year “we saw a number of states holding primaries that failed to get all absentee ballots to voters who requested them in time to vote,” he said. “Sending ballots to voters who did not request them is more defensible in a pandemic, even though I don’t like the idea generally.”

In 2019, a North Carolina GOP operative was caught gathering ballots and filtering out the ones that didn’t help his client before sending them in. He was arrested and charged, state regulators called for an electoral re-do and the political world received a crash course in third party ballot collection — also known derisively as “ballot harvesting.”

That practice is illegal in North Carolina, but not in California. A 2017 law gave anyone the right to gather up and return the absentee ballots of registered voters, so long as they’ve been designated to do so by the voter and they aren’t receiving a per-ballot fee.

“You have people who live on reservations who may not have convenient access to a post office. You have people living in nursing homes who may not have that access and just want to give their ballot to someone they trust,” said Kim Alexander, president of the nonprofit California Voter Foundation.

Republicans in California have oscillated between condemning “ballot harvesting” as a Democratic dirty trick and trying to get in on the action.

But with COVID-19, most of the state’s GOP seem to have swung back to their initial position. In its lawsuit challenging one of Newsom’s executive orders, the California Republican Party painted the governor as a hypocrite for refusing to ban the human interaction of ballot harvesting amid a pandemic.

It’s an intuitive concept: People are more likely to engage in an activity if they can do it while eating ice cream on the couch.

Studies have found that the introduction of vote-by-mail does seem to boost turnout, with estimates ranging from 2 to 10%.

So who exactly is turning out? As with any rigorously researched issue, disagreement abounds.

In Oregon, the first state to go entirely vote-by-mail, the new rules led to a modest increase in turnout, but not because new voters were entering the electoral fold. Instead, a number of studies found that voting by mail turned semi-regular voters into regular voters. Once ballots started showing up unprompted, Oregonians with a prior pattern of voting were more likely to keep up the habit.

But there may be a broader impact. A study led by Stanford University professor Adam Bonica estimated that Colorado’s recent switch to a vote-by-mail system boosted overall turnout by more than 9%, with the biggest increases among the demographic groups least likely to vote. He and his fellow researchers found a 10% increase among voters without a high school diploma and a nearly 17% surge among voters under the age of 30.

Three studies of Utah, Colorado and Washington found similar findings: overall turnout boosts of 7%, 3% and 2%, with notably higher increases among people without a history of voting.

You wouldn’t know it from the way the president often talks about all-mail voting, but a consensus has emerged among political scientists who study this question: More voting by mail doesn’t predictably help one party over another.

While vote-by-mail makes it easier for young, lower-income voters to get their vote in, which often helps Democrats, it also makes it easier for reliably right-leaning older voters to cast a ballot as well. “These conflicting factors appear to cancel each other out, dampening any partisan advantage,” wrote Lee Drutman, a fellow at the center-left think tank New America, in FiveThirtyEight.

Another datapoint: In mid-May, California held two all-mail test-runs, for an empty congressional seat in Santa Clarita and a state Senate vacancy in Riverside. Both districts have more registered Democrats than Republicans, but in both races, the Republican candidate won overwhelmingly.

With the president’s recent denunciations of California’s all-mail election, it’s possible that the way you cast your ballot — like the stores and restaurants you frequent, the church you do or don’t attend, and your decision to put on a mask amid a pandemic — will become yet another telltale partisan marker.

In the recent Wisconsin presidential primary, Democrats attributed their blowout victory to voting by mail — not because mailing in ballots inherently helps liberals, but thanks to their party’s warmer embrace of the new election procedure. In neighboring Michigan, supporters of the president burned their absentee ballot notification cards in protest earlier this month.

In May, the pollsters at the Public Policy Institute of California asked voters if they support the idea of sending ballots to every registered Californian. Overall, it was wildly popular, with 73% approving.

But that masked a deep partisan chasm. Among Democrats, the question elicited “Do you like puppies?” levels of support, with 94% approving. But despite the state’s long history of voting from home, only 37% of Republicans agreed.