The following is an op-ed in response to Professor Ross Sandler’s Commentary regarding mail-in ballots and the election. To read that piece, click here.
I think Ross Sandler makes some very good points in this editorial on mail-in ballots. I think, however, that we have an exceptional situation with this year’s election. Part of the problem in thinking about the mail-in ballot issue is that it takes a fair amount of time to undertake the steps necessary to conduct mail-in voting on a large scale, especially in a jurisdiction where it hasn’t been done in the past. We can’t know far enough in advance what the situation will be with the pandemic.
Right now, in New York, we are in a very different situation from most of the rest of the country because our collective efforts have brought the incidence of new cases down to a low level and, as New York Law School’s consultant said in our briefing, the chances of coming into contact with an asymptomatic person who is unmasked in a public place is now very low. If we could count on that situation persisting to November, I would agree that it makes sense to revert to our normal rules in New York with the limited number of reasons why somebody could request an absentee mail-in ballot.
But we don’t know that. We could be in the middle of a second wave, making it very dangerous to have in-person voting on a large scale, especially if it involves people waiting in long lines and being in crowded polling places where social distancing is difficult to maintain.
So my view is that, given the time in advance needed to conduct wide-scale mail-in voting, it is prudent to go ahead and plan for that, but only as a temporary thing.
I would be totally opposed to permanently altering the voting system in New York to virtually all mail-in as a handful of other states have been doing for years, since I agree with Sandler’s preference in a “normal” time to rely primarily on in-person voting.
I do think early voting opportunities make some sense, but that makes me uneasy because events occurring in the last few weeks before the election could be occurring after many people have voted, and some might want to change their vote!
By: Arthur S. Leonard, Robert F. Wagner Professor of Labor and Employment Law at New York Law School