Vote-by-mail ballots have been sent to all registered voters in Amador County, with Solano reporting they will be mailing ballots today, while Los Angeles, San Francisco and San Diego counties — and maybe others – will be mailing next week. These counties are getting ahead of the Oct. 5 deadline for California counties to mail ballots. In other states, meanwhile, voting has been taking place for weeks.
With all 21 million California voters being mailed ballots for November, it’s a great time to check in on the health of our transition to Vote By Mail in California, and how it relates to the systems in the rest of the country.
Election Attorney Marc Elias has been working nonstop since the pandemic hit, seeking to advance vote-by-mail laws throughout the country in order to ensure a fair election in the middle of a pandemic. He has come up with what he calls the“four pillars” for safe and effective mail-in voting: All ballots should be postage paid, ballots postmarked on or before Election Day must be counted, signature-matching laws need to be reformed to protect voters, and community organizations should be able to collect and return sealed ballots.
Looking at today’s elections, we might want to add a couple more.
California, as we have written previously, is well prepared for this coming election cycle. Not only do we have a high-quality, up-to-date (and growing) state voter file, we also have — particularly over the past five years — taken steps to ensure all vote-by-mail ballots count.
Each of Elias’ four pillars is already a part of California’s election system and is largely supported by voters.
For years, one of the biggest complaints of county registrars was the increasing number of ballots that were arriving late and going uncounted
For several election cycles back, some counties were utilizing pre-paid postage for their vote-by-mail ballots. This was required in small counties that were already all vote-by-mail, like tiny Alpine County, but it seemed hit and miss with the others.
Then, in 2017, legislation by Lorena Gonzalez (AB 216) required all counties to have postage paid on by-mail ballots – an important change concurrent with the shift in many counties to the Voters Choice Act model, in which vote centers and universal by-mail voting were replacing the traditional precinct-voting systems. This element of our vote-by-mail system is supported by 88% of voters in our latest Capitol Weekly poll.
For years, one of the biggest complaints of county registrars was the increasing number of ballots that were arriving late and going uncounted. Often, these were ballots that had been mailed on time, maybe even a few days before the election, but just were trickling in for days after.
In some cases these late ballots were actually received on time, but had accidentally been delivered to the wrong county registrar.
Several counties were coming up with their own ways of dealing with this issue, including Santa Cruz registrar Gail Pellerin, who would send staff into neighboring Santa Clara County (where much of Santa Cruz County’s mail is sorted) to retrieve their ballots directly from the post offices and neighboring County Clerk.
In 2014, then-state Sen. Lou Correa fixed this in Senate Bill 29, which allowed for ballots to be counted as long as they were postmarked by Election Day. The law was originally set to extend for three days after the election, but that has been stretched out to 17 days. This policy is also strongly supported by voters, with 79% saying that it makes them more confident in the system.
Everyone should be able to sign something; we do it all the time.
In the 2020 primary, there were still over 70,000 ballots that were deemed too late – having postmarks after Election Day. But, unless there is a problem with the U.S. Postal Service, these are ballots that were, by definition, arriving too late — and not counting them was a legitimate part of the process.
It is similar to that unknown number of voters who might try to go to a polling place at 8:01 p.m. and are turned away. Those people not disenfranchised voters; they are voters who missed the election. Expanding the opportunity to vote doesn’t come without the implementation of actual rules.
The third pillar is something that sounds pretty obvious: signatures.
Everyone should be able to sign something; we do it all the time. But, as we get older, many of us develop our “official” signature and an alternate “casual” signature used for signing things that are just not as important, like a bill at a restaurant. But, when voting, it has been historically the signature on the registration card that you have to match.
As recently as three years ago, I was a part of a lawsuit brought by the ACLU challenging the state’s high rate of ballots being rejected due to lack of signature-matching, and the fact that there was no uniform process across counties allowing voters to fix their signatures (in election terms, to “cure” their ballots).
In particular, the suit claimed that a number of older voters would have signatures that don’t get matched. Additionally, older foreign-born voters would have non-matching signatures as their signatures would revert to their native written languages.
California and several other states allow voters to have someone else return their ballot, a process that opponents have successfully coined “ballot harvesting.”
This has been fixed in legislation by Mike McGuire in 2018 (SB 759) that orders counties to allow for voters to fix their signature and have their vote counted – even after Election Day. In addition, the data on which voters need to fix their signatures is now publicly available so campaigns can obtain this information and let voters know that they need to fix their ballots.
This change has been strongly supported in polling, with 62% of voters saying that it gives them more confidence in the vote-by-mail system.
The final pillar is also the most controversial, in which California and several other states allow voters to have someone else return their ballot, a process that opponents have successfully coined “ballot harvesting.” (Since this is the modern-day version of driving people to the polls, I guess we should have been calling that “people harvesting.”)
This ballot delivery system makes it one of Elias’ pillars because of what it can mean for voters who are insecure about the safety of voting by mail (something particularly acute in this election cycle). And also because many voters simply feel more comfortable dropping off their ballot with a friend, having it taken in by their neighbor, or even dropped off at a church.
So far, over a million voters have already signed up to receive a call, text or email to update them on the status of their ballot.
In fact, the first organized ballot delivery program we saw in California was in 2017 during a Los Angeles-area special election for Congress, when the Republican candidate was having ballots delivered to local Korean churches.
In the COVID era, there is likely to be fewer campaigns working on ballot delivery programs, with most simply encouraging their voters to return ballots in the mail. But there is one extremely important situation where it still might matter – anyone in a hospital, nursing home, or other location where family members are not allowed to visit would likely have to have a nurse or staff person handle the ballot, something that would not have been legal before the passage of this law.
Beyond these four pillars, there are two more that I would suggest are critical for voter’s confidence in the election system: ballot tracking and immediate processing of ballots – things California has, but are lacking in some critical states.
California’s ballot tracking system was used by 25 counties in the primary, but with the expansion of vote-by-mail for the general election, Gov. Gavin Newsom included a requirement that all counties participate – and so far, over a million voters have already signed up to receive a call, text or email to update them on the status of their ballot.
In multiple polls, this system is consistently found to be the most confidence-inspiring reform possible — with a whopping 92% of voters in Capitol Weekly polling saying it makes them feel more confident in the vote-by-mail system.
More and more ballots are being counted after Election Day, and in this environment states and counties should be working to speed this up.
This ballot tracking is possible in 38 states, with the system in California being one of the most comprehensive. Getting more voters to use this system can help break through the conspiracy theories and misinformation swirling around this year’s election.
The last one is something that has nothing to do with the act of voting, but everything to do with how voters will perceive the results of the election. As we have seen in California over the last several election cycles, more and more ballots are being counted after Election Day, and in this environment states and counties should be working to speed this up.
This is how it works: Thanks to the newly passed AB 860 by Marc Berman (D-Menlo Park), when your ballot is received by the registrar officials, they have the ability to begin processing it right away. They will process ballots by first verifying signatures and checking to ensure the voter has not already cast another ballot. Then they remove the ballot, prepare it to be machine read, and get it tabulated. This is all in preparation for reporting the ballots when the polls close on Election Day. These first results, often posted a minute after the 8 p.m. closure of the polls close, are called “the 801s” by political observers who know these are just the early vote by mail results.
On Election Day after the polls close, any in-person votes are sent to the county registrar and can be tabulated and reported later that evening.
We know from our polling that voters have concerns about election administration, particularly about how elections are managed in other parts of the country
The combination of early votes and in-person votes should be about 70% of the total votes cast, with the remaining 30% or so coming in the mail on Election Day, dropped in drop boxes, or even arriving in the days following the election.
Each of these needs to be signature verified, checked that the voter didn’t cast another ballot, and then tabulated, thus causing what we have come to know as a rather long process when a contest is really close.
But in several states, this isn’t how vote-by-mail works. In many states that don’t have a long history of vote-by-mail — including key swing states of Michigan and Pennsylvania — mailed-in ballots can’t begin to be processed until Election Day.
For those states, this means that the reported results on Election Night might just be the small portion of the electorate that voted at the polls, and which is unlikely to be a true representative sample of the electorate. Where California registrars have been counting ballots for 29 days, accelerating the reporting of results, these states could see weeks of delays in reporting.
We know from our polling that voters have concerns about election administration, particularly about how elections are managed in other parts of the country. If we see a presidential election that is close, we could be in a long haul of waiting for weeks or months to find out who won – something that would be avoidable if all states were following the same processes as California.
And, again, we expect Marc Elias and other voting rights attorneys to be right there fighting to make sure ballots are counted. Whether you’re a Democrat or Republican, having every eligible voter be able to cast a ballot and have it count should be a shared value, and we should have faith that our election officials are up to the task.
This year, we could really be putting that faith to the test.
Editor’s Note: Paul Mitchell, a regular contributor to Capitol Weekly, is the creator of the CA120 column, vice president of Political Data, Inc., and owner of Redistricting Partners, a redistricting consulting firm.