With control of Virginia’s House of Delegates hanging in the balance in last month’s election, every potential vote mattered – particularly in the state’s hotly contested 28th District.
The candidates knew it. So did election officials.
Throughout Election Day, workers at the Stafford County election office repeatedly telephoned the US Postal Service to make sure there were no absentee ballots waiting for delivery. The calls were made at least once every hour all day until polls closed at 7 p.m.
The race was indeed tight. By the time all votes were counted, Republican Robert Thomas, Jr. held an 82-vote lead over Democrat Joshua Cole.
Then, at 10 a.m. the morning after the election, the local Post Office delivered a stack of 55 uncounted absentee ballots.
“There is no possible way … that these ballots should not have been available to us on Election Day before close-of-polls,” Director of Elections Greg Riddlemoser wrote in an exasperated email to various officials.
Nonetheless, somehow 55 potential votes slipped through the cracks.
Lawyers for Mr. Cole, the trailing Democrat, filed an emergency motion asking a federal judge to order election officials to open and count the 55 mail-in ballots. They argued that not counting the ballots would disenfranchise 55 voters.
“These voters did everything they were supposed to do in order to have their ballots counted,” the lawyers wrote in their motion to the judge.
Virginia law requires that absentee ballots be received in the election office before the close of polls on Election Day. It is a bright-line rule.
After a hearing, the judge denied the request.
The plight of those 55 uncounted ballots – and the resulting disenfranchisement of 55 Virginia voters – highlights a little-known fact about voting by mail. Despite its obvious convenience and growing popularity, it can be an extremely unreliable way to cast a ballot.
“Voting by mail has this big uncertainty about it,” says Brian Gaines, a political science professor at the University of Illinois. “It is just a less secure kind of voting.”
Nationwide, roughly 24 percent of all votes in the 2016 presidential election were cast via absentee ballots. That’s 33 million votes, according to the federal Election Assistance Commission. But what many Americans don’t know is that nearly 400,000 of those ballots were never counted, having been disqualified for reasons ranging from invalid signatures to simply being late.
While 400,000 votes may not make a difference in a landslide, most elections don’t end in a landslide. For example, the 2000 presidential election was decided in Florida by 537 votes. In a close race every vote can make a difference. That is particularly so, election experts say, in down-ballot races at the state and local level during low turnout elections.
A fundamental shift
A few decades ago, voting by absentee ballot was the exception to the rule. It usually required a voter to provide an acceptable reason justifying her or his inability to vote in person.
Today, 27 states and the District of Columbia allow anyone to vote absentee if they so choose. Three states – Oregon, Washington State, and Colorado – conduct their elections entirely via ballots transmitted by mail. They are at the vanguard of what vote-by-mail (VBM) proponents hope will become a nationwide movement.
VBM advocates stress that it is easier for voters, allowing them to research the candidates and fill out their ballots at home without the hassle of long lines and feeling rushed by other voters at the polls.
Some have also suggested that voting by mail might help increase voter turnout. That remains an open question, with no consistent evidence so far that voting by mail is drawing large numbers of new voters into civic engagement. Instead, the extra convenience seems to appeal primarily to voters who are already politically engaged.
VBM supporters also say the process is cheaper, since election administrators no longer have to maintain vast networks of precinct-based polls staffed by hundreds of workers and scores of IT professionals. According to estimates, mail-in voting can cut election expenses by 30 to 50 percent.
Wendy Underhill is an elections expert at the Denver-based National Conference of State Legislatures. She is also a voter in Colorado’s statewide vote-by-mail system.
She says election officials are reaching out to voters in ways they never did with in-person voting.
“My county clerk sends me a text saying: ‘We’ve printed your ballot.’ And then I get a text saying: ‘We put your ballot in the mail today and you should be getting it on Tuesday,” Ms. Underhill says.
“Then a week later, a text arrives: “Have you voted your ballot yet? You still have time,’ ” she says. “Then when my ballot finally got back to them, I got a text saying: ‘Your ballot has been received. Thank you.’ ”
Underhill adds: “I feel connected to my ballot in a way I never did before.”
Voting at the polls
Most US voters still go to a polling place to cast their ballots, either on Election Day or during a period of early voting. The advantage of in-person voting is that ballots are cast in a protected environment where voters are shielded from potential coercion and the process is conducted in a way that most votes are likely to be properly cast and counted.
In contrast, there are a significant number of potentially disqualifying hurdles that apply to absentee ballots.
Like the 55 ballots in Virginia’s 28th District, absentee ballots sent through the mail depend on the reliability of the US Postal Service. If absentee ballots are lost in the mail or delivered late, they won’t count.
But even if they are received on time, such ballots might be disqualified because the voter forgot to sign the mailing envelope or because officials determine that the voter’s signature wasn’t a close enough match to the signature on file in the voter registration database.
Critics of mail-in voting also raise the specter of fraud.
In-person voter fraud at a polling place is difficult to accomplish and rare, according to election experts. In contrast, absentee voting presents a significantly easier opportunity for someone looking to rig an election.
“It is true there isn’t yet a good case of large-scale fraud where someone got hold of hundreds of thousands of ballots and then cast them on behalf of people who aren’t the actual voters,” says Professor Gaines. “But it is plainly not a desirable situation to have loose ballots that are unaccounted for, in the sense that they are out there and could be cast.”
Roughly 20 percent of the 41.6 million absentee ballots sent out to voters in the 2016 presidential election were never returned. That’s nearly 8.3 million ballots sloshing around in a sea of junk mail during election season. In addition, 583,000 of those ballots were returned to election officials by the Post Office marked as undeliverable.
“It is just creating huge holes in the system everywhere,” says Gentry Lange, a Seattle real estate broker and director of the No Vote By Mail Project.
With such a large number of un-voted ballots, it is remarkable that there aren’t more absentee ballot fraud cases, some experts say. But there are some.
How to fix an election
Among recent examples is one in St. Louis, Mo., where federal agents are investigating suspected fraud related to the 2016 Democratic Primary for the District 78 seat in the state’s General Assembly.
The contest was between incumbent Penny Hubbard and Bruce Franks Jr., a young activist.
Mr. Franks won the votes cast in person at polling locations by 53 percent to 47 percent. But Ms. Hubbard won among absentee ballot voters 78 percent to 22 percent.
Hubbard’s margin of victory was 90 votes. The discrepancy drew the attention of a lawyer for Franks, who challenged the absentee ballots.
The local election board had counted as valid 142 absentee ballots that had not been submitted in sealed envelopes. Sealed envelopes are required under Missouri election law for absentee ballots to be counted as valid. A state judge ruled the board was not authorized to waive the sealed envelope requirement. The judge ordered a new election.
In the resulting special election, Franks won in a landslide with a 1,500-vote margin, garnering 86 percent of votes to 14 percent for Hubbard. The incumbent still won the majority of absentee ballots – 56 percent. But there were only 164 absentee ballots cast.
Other examples of mail-in ballot fraud include:
- Law enforcement officials in Texas are investigating an individual who allegedly requested and collected several hundred absentee ballots from elderly voters during the 2016 city council election in Dallas.
- Former Eatonville, Fla., Mayor Anthony Grant was convicted of election fraud for coercing voters to cast absentee ballots for him in 2015. He lost the vote among those who voted in person, but won the election with a strong showing among absentee voters, some of whom later testified that he told them to vote for him and stood over them while they filled out their ballots. He was removed from office and sentenced to 400 hours of community service and four years probation.
- In 2013, the former chief of staff to then-Rep. Joe Garcia (D) of Florida pleaded guilty in Miami to involvement in a scheme to use computers to request 1,800 absentee ballots without the voters’ knowledge. In a plea deal, he was sentenced to 90 days in jail and 18 months probation.
Several years ago, Professor Gaines appeared as an expert witness in a local election fraud case in Cairo, Ill. The alleged scam involved paying homeless people and others in the community $5 to vote for a particular candidate for sheriff and county clerk.
“For $5,000 you could turn the election,” Gaines says of the local race.
The fraud backfired because many of the would-be voters were not interested enough to fill out the entire ballot.
“Ordinarily, people who vote on sheriff also vote on state legislators, the US House, and so on,” Gaines says. “These ballots were skipping everything at the top and going straight down to the sheriff and county clerk.”
Although it is unclear how often this type of election fraud takes place, distribution of a large number of absentee ballots makes such scams substantially easier – particularly in local races where a couple hundred votes can swing the outcome.
“It is not a secret ballot,” says Mr. Lange. “If I can show it to my neighbor, if I can show it to my employer, if I can sell it for $10 and sign it, it is no longer a secret ballot.”
In Washington State, Lange notes that every registered voter is sent a ballot, but in some elections only about half of registered voters actually vote.
“You have 50 percent of the ballots just sitting around for anybody to take and do whatever they want,” he says.
The primary check against fraud is matching the ballot signature against the voter’s signature in the registration database. Critics say this process can be easily defeated.
Lange says that as a property manager he has access to a large number of signatures from rent checks and other personal checks. “So if I want to sit there and copy a bunch of signatures onto ballots, there are plenty of ballots floating around to do it,” he says.
Aside from presenting an opportunity for fraud, the signature verification process can also lead to the disenfranchisement of a significant number of legitimate voters with bad or inconsistent penmanship.
Ms. Underhill says her daughter’s mail-in ballot in Colorado was rejected because her ballot signature did not match her signature on file.
The file signature was obtained at a younger age when her daughter was more precise when signing her name, Underhill says. “And then when she voted she used her college-age signature that was all scribbly and didn’t match.”
Unlike many voting jurisdictions, Colorado did not simply toss her ballot out as void. Instead, election officials notified her of the discrepancy and gave her an opportunity to correct the problem so her vote would count.
Election office verification procedures vary greatly among jurisdictions. As a result, so do ballot rejection rates.
For example, in 2016, roughly 9.3 percent of absentee ballots cast in New York State were never counted. Officials in Washington, D.C., on the other hand, rejected only .19 percent. Election officials in Georgia disqualified 6.4 percent of absentee ballots, while Wisconsin officials voided 1 percent.
Some jurisdictions make a concerted effort to prevent absentee voters from being disenfranchised. Others don’t.
In October 2016, one month before the presidential election, a group of lawyers working on behalf of the Democratic Party filed suit in Florida to force the state’s 67 supervisors of elections to notify absentee ballot voters whenever their ballots were rejected because of a perceived signature mismatch.
Under Florida law, voters who forget to sign their absentee ballots must be notified of the oversight and given an opportunity to correct the mistake. But the law did not require similar outreach in cases of mismatched signatures.
“During this election cycle, millions of voters across the state will march happily to their mailbox and attempt to exercise their fundamental right to vote by mailing their vote-by-mail ballot,” US District Judge Mark Walker wrote. “After the election, thousands of those same voters – through no fault of their own, and without any notice or opportunity to cure – will learn that their vote was not counted.”
Three weeks before the November 2016 election, Judge Walker issued an emergency injunction, requiring election officials to give voters with mismatching signatures on absentee ballots a chance to fix the problem.
'It is obscene'
“This court knows disenfranchisement when it sees it, and it is obscene,” he wrote in his order.
Did Judge Walker’s urgent judicial action on the eve of the 2016 presidential election make a difference?
Not much. The judge had noted that 23,000 absentee ballots were rejected four years earlier in the 2012 election. In the 2016 election, with the judge’s order in effect, that number fell to about 22,000 ballots rejected statewide, according to EAC statistics.
More specifically, in the 2012 election, 5,398 ballots were rejected in Florida because of signature mismatches. Following the judge’s order in 2016, 5,537 absentee ballots were rejected for that reason.
Of course, the number of registered voters in Florida had increased, as had the number of absentee ballots being cast. But by the judge’s own standard, thousands of absentee ballot voters are still being disenfranchised across Florida.
After Judge Walker’s injunction, the Florida Legislature amended the state’s election law to require officials to offer voters an opportunity to fix any problem with a ballot signature. It was signed into law June 2.
Florida isn’t the only state grappling with the issue of ballot signatures. A similar lawsuit was filed in California in August to require election officials to notify voters if their vote-by-mail ballots do not include a valid signature.
The suit said 45,000 vote-by-mail ballots weren’t counted in California in the 2016 election because of signature issues.