Large numbers of people will vote by mail-in ballots this November because of Covid-19. Everyone should be concerned about the impact of mail-in ballots on democracy.
In-person voting best serves democracy. Past generations labored to have voting occur on a single day, in secret, at a neutral place, guarded by police, and with the winner declared promptly. Candidates and the public view the results as legitimate and final. Extended time voting lengthened the process but did not undermine the principle.
Voting is a civic duty. Personally appearing at the poll site validates a voter’s participation in democracy. Voting with the community, best done on a single day, has a magical feel that focuses attention, produces a sense of finality and gives legitimacy to the result.
Voter fraud all but disappeared. Officials at the polling sites decided identity and eligibility. The voter and the officials were physically together. Decisions were immediate, transparent and observed by poll watchers. Few litigations resulted.
Absentee mail-in ballots were available for those relatively few voters with disabilities or who could not otherwise get to the polls. Absentee ballots rarely affected outcomes because the absentee ballots were too few to change the results.
But hundreds of thousands or millions of mail-in ballots will inevitably decide elections. Gamesmanship will take over. The votes of in-person voters will already be counted so the candidates will know who is winning or losing. Candidates will marshal their lawyers and checkers for the post-election battles that they cannot ignore. The voter who signed the mail-in ballot will not be present when identity, eligibility or intent is questioned. Each mail-in ballot will present an opportunity for a contest.
Winners cannot be promptly announced when the polls close because the mail-in ballots must first be counted. Candidates will litigate and re-litigate individual mail-in ballots as they watch the totals change.
With mail-in voting, fraud is unlikely, but controversy is certain. Delay is certain. Litigation is certain. The legitimacy of the presidential election and other elections will be undermined.
New York and the other states, to the extent possible and as fast as possible, should return to in-person voting, in secret, at a neutral place, guarded by police, and with results published promptly.
By: Ross Sandler, Professor and Director of the Center for New York City Law at New York Law School
To see a response to this commentary from New York Law School Professor Arthur S. Leonard, click here.