Testimony of Hans A. von Spakovsky,
Senior Legal Fellow and Manager, Election Law Reform Initiative
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation
THE MISSOURI ADVISORY COMMITTEE
OF THE U.S. COMMISSION ON CIVIL RIGHTS
August 27, 2020
Thank you for the invitation to testify before the Advisory Committee on the issue of planning for a safe, accessible election in Missouri in November in the face of the COVID-19 health crisis.
I am Hans A. von Spakovsky, a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation (www.heritage.org). I was a Commissioner on the Federal Election Commission for two years and am a former career Counsel to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice, where I coordinated enforcement of federal voting rights laws including the Voting Rights Act of 1965.
I am also a former member of the Presidential Advisory Commission on Election Integrity; the Board of Advisors of the U.S. Election Assistance Commission; the Registration and Election Board of Fulton County, Georgia; the Electoral Board of Fairfax County, Virginia; and the Virginia Advisory Board to the U.S. Commission on Civil Rights. I have published extensively and have testified before both congressional and state legislative committees on voting and election issues.
All of the views and opinions I express in my testimony are my own and should not be construed as representing any official position of The Heritage Foundation or any other organization.
I would make two important points based not only on my experience and knowledge, but on the experiences of voters and election officials in the primary elections that have been held since March by jurisdictions like Wisconsin, Maryland, the District of Columbia, and New York.
In-person voting can be conducted safely and is the best way of ensuring that voters are not disenfranchised.
When state election officials follow the safety protocols recommended by health care experts, they can safely hold in-person voting. I recently published a Heritage Foundation report on how other jurisdictions have successfully conducted free and fair elections during health crises, including Liberia in 2014 during the Ebola epidemic in West AfricaREF
Wisconsin successfully held its primary election on April 7, 2020 with both absentee balloting and in-person voting – there was no disparity in access whatsoever for any voters in the state. The election was held just two weeks after a statewide “Safer at Home” order became effective on March 25.
The voter turnout of 34.3 percent was virtually identical to the turnout of 34.9 percent in 2008, when there was a heavily contested race between Hillary Clinton and Barack Obama. The 2020 turnout was eight percentage points higher than in 2012 when turnout was only 26.1 percent. While the majority of Wisconsin voters used absentee ballots, more than 300,000 voted in person.
A report released by analysts from the World Health Organization and Stanford University after the Wisconsin election found “no detectable surge” in COVID-19 “transmissions due to the April 7” election.REF Similarly, the Centers for Disease Control and Prevention, which is the federal agency leading the medical effort on COVID-19, issued a report on July 31 looking at the experience of Milwaukee. It concluded that there was no “increase in cases, hospitalizations, or deaths” from COVID-19 due to the election. In fact, there were fewer cases reported during the “incubation period” after the election – April 9-21 – than in the 13 days preceding the election.REF
South Korea had similar results. It held a national election on April 15 in which 29 million votes were cast in-person, using the same types of safety protocols. South Korean health officials also report “no infections from this month’s general election” from COVID-19.REF
As outlined in Heritage’s report, Wisconsin’s Election Commission promulgated an extensive poll worker training manual that provided mandated health procedures for the administration of polling places on Election Day.REF These included social distancing in voter lines; hand washing/sanitizing stations for all voters when entering and leaving polling places, as well as regular sanitizing of all tables, door handles, voting booths, voting equipment, and everything else being touched or handled in the polling place; and curbside voting for voters who could not come into polling places.
The Centers for Disease Control has issued similar guidance for conducting in-person voting safely.REF It also includes everything from social distancing in voter lines to the cleaning and disinfecting of equipment and voting materials used in a polling location. Rather than decreasing the number of polling locations as some jurisdictions unwisely did during their primaries, the CDC recommends “increasing the number of polling locations” in order to “improve the ability to social distance.”
The ability to safely hold in-person voting is important because of the problems with absentee or mail-in ballots. Voters in Wisconsin, Maryland and the District of Columbia reported numerous problems due to requested absentee ballots not being delivered by the postal service or arriving too late to be counted (although this was a problem experienced by all voters; it had nothing to do with race or ethnicity).REF
The long lines during the primaries were caused by election officials encouraging voters to use absentee ballots and then unwisely reducing the number of polling places. For example, the District of Columbia opened only 20 polling places, down from the 100 that are typically open. Long lines also resulted from voters appearing unexpectedly at polling places to vote in person because they did not receive their absentee ballot.REF In person voting protects voters from electioneering by candidates and political parties; guarantees the secrecy of the ballot; and ensures the delivery of the ballot when the voter personally deposits it in a ballot box in the polling place.
Promoting the increased use of absentee ballots by voters will result in more voters being disenfranchised.
In 2012, the New York Times correctly summarized the problems with absentee or mail-in ballots: “Yet votes cast by mail are less likely to be counted, more likely to be compromised and more likely to be contested than those cast in a voting booth, statistics show.” Even in normal times, the rejection rate for absentee ballots by election officials is “double the rate for in-person voting.”REF As Ion Sancho, the election supervisor in Tallahassee, Florida told the Times, “the more people you force to vote by mail, the more invalid ballots you generate.”
That has been demonstrated by recent state primaries where state officials and many advocacy organizations promoted absentee balloting rather than voting in-person. According to a recent report, “more than 534,000 mail ballots were rejected during primaries across 23 states…illustrating how missed delivery deadlines, inadvertent mistakes and uneven enforcement of the rules could disenfranchise voters and affect the outcome of the presidential election” as well as many other races.REF
This is not a new phenomenon, as the 2012 New York Times story illustrated. The U.S. Election Assistance Commission files reports with Congress based on data collected from the states after every federal election. According to those EAC reports, in the last four federal elections (2012, 2014, 2016, and 2018), almost 1.3 million mail ballots that were received from voters were rejected by election officials. Over 2 million ballots sent to voters were “undeliverable” and the fate of over 28 million ballots sent to voters was “unknown.” The EAC defines “unknown” ballots as those that “were not returned by voter, spoiled, returned as undeliverable, or otherwise unable to be tracked.”REF
The reason for this is straightforward. Mail ballots are the only ballots voted outside the supervision of election officials and outside the observation of poll watchers, destroying the transparency that is the hallmark of our election process. They are also subject to misdelivery or delayed delivery by the U.S. Postal Service. When an individual votes in-person, there are election officials in the polling place who can answer questions and try to remedy any problems. There are no such officials in voters’ homes to ensure that they correctly provide the information required with an absentee ballot.
Furthermore, if the U.S. Postal Service does not postmark the ballot envelope, the absentee ballot may be rejected by election officials if they are unable to verify that the ballot was completed and mailed by the end of Election Day. In fact, the USPS Inspector General recently reported that thousands of absentee ballots were never delivered to Wisconsin voters and others were not postmarked, leading to their rejection by election officials.REF
In the New York primary, which was held on June 23, one in five ballots in New York City has been rejected by election officials for everything from not having a postmark to the voters’ signatures not matching their registration signatures, to not properly supplying all of the registration information required.REF This is an enormous, unacceptable disenfranchisement rate – 20 percent – that is likely to occur in the general election if state officials continue to promote and encourage mail ballots instead of giving voters the ability to vote in person.
Finally, the state laws that prevent candidates, campaign staffers, party activists, and political consultants from electioneering in and near polling places do not apply to voters’ homes. This makes voters vulnerable to pressure, intimidation and coercion from individuals who have a stake in the outcome of the election, something that cannot legally occur in polling places. It also makes their ballots subject to being stolen, altered, or forged.
There are numerous cases involving absentee ballot fraud and voters being targeted with coercion or having their ballots stolen or filled out by others. Many of these cases are outlined in the Heritage Foundation’s Election Fraud Database, which contains a sampling of proven fraud cases from around the country.REF Such problems were encountered in Paterson, New Jersey, after it made the mistake of switching to an all-mail process for its recent municipal election, which also had a very high, unacceptable rejection rate. Four locals have already been criminally charged in an absentee ballot fraud scheme and a new election has been ordered.REF
Unfortunately, the targets of such schemes are often those most vulnerable. As a court outlined in a 2003 mayoral primary election in East Chicago that involved, according to the court, “pervasive” and “voluminous, widespread” absentee ballot fraud, those targeted “were first-time voters or otherwise less informed or lacking in knowledge of the voting process, the infirm, the poor, and those with limited skills in the English language.”REF
In 2012, Anthony DeFiglio, a local Democratic Committeeman in Troy, New York, pleaded guilty to falsifying business records in a case involving absentee ballot fraud in a 2009 primary election. Voters’ signatures were forged on absentee ballot request forms, submitted without their knowledge, and then their absentee ballots were fraudulently completed and submitted without their knowledge.REF The voters whose ballots had been stolen lived in low-income housing and when asked why they had been targeted, DeFiglio told investigators those voters were “a lot less likely to ask any questions.”REF
This patronizing, dismissive statement reflects the attitude of those willing to take advantage of voters to compromise an election.
As long as election officials open up the usual number of polling places on Election Day and implement all of the health safety protocols recommended by experts as Wisconsin did in its April 7 primary, there is no reason to expand absentee and mail ballots. In fact, doing so will disenfranchise voters.
Additionally, all states offer some form of curbside voting for the disabled and those who cannot make it into a polling place. The Wisconsin manual on “Poll Worker Procedures” outlines how such curbside voting can be safely conducted in the midst of COVID-19.
No one disputes that absentee ballots should be available for those who are unable to vote in person, including those individuals who are in the highest risk groups for COVID-19. But other voters should have the ability to vote in person, where they can vote in secret without outside pressure and can ensure that their ballots are placed in a ballot box, rather than depending on the postal service or third parties to maybe, hopefully deliver their ballots in time to be counted. Absentee voting should always be kept to a minimum because of its inherent risks.
To the extent that mail-in and absentee ballots are used by states, election officials should follow the best practices guidelines outlined by the Heritage Foundation in “Standards for Absentee Ballots and All-Mail Elections: Doing It Right…and Doing it Wrong”REF as well as the procedures recommended by the National Task Force of the Public Interest Legal Foundation on “Standards for Voting by Mail.”REF
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