Election Law Genie Escapes Bottle

Sarah John

March 1, 2021

(reposted from sarahejohn.com) 

In the aftermath of an unprecedented number of pandemic-related election law changes and attacks on the legitimacy of election administration in 2020, the election law genie is now out of the bottle. Legislators across the country are poring over their election codes with gusto not seen since the Progressive Era. Political parties and politicians are cynically jostling for advantage while professing concern for the integrity of our elections.

In Georgia, numerous election law bills covering the full gamut of election administration are currently before the legislature, including restrictions on who can distribute absentee vote applications, allowing voters to vote at any precinct in their county, more regular reporting of deaths to keep voter rolls up-to-date, and ranked choice voting for overseas and military voters.

The proposals that have gained the most attention include a set of bills, introduced by Republican senators, that would eliminate "no-excuse" absentee voting and vote drop boxes, and require absentee voters to mail two copies of their ID: one with their application for an absentee ballot and the other with their completed ballot.

Ostensibly introduced to ensure “confidence and trust in the integrity of our election results” (in the words of state senator Larry Walker), these bills appear to be more a response to the changed partisan calculus of absentee balloting, in which 2020 mail ballots favored Democrats. Forcing millions of copies of ID into the mail at election time seems an odd way to increase confidence. ID theft is a massive problem; absentee voter fraud is not (being a little more common than death by vending machine).

Absentee voting was relatively uncontroversial in Georgia before 2020. Georgia has not required voters to provide a reason for absentee voting since 2005, when the Republican legislature and governor introduced “no excuse” absentee voting. About 5% of ballots were absentee in the 2016 presidential election, consistent with previous elections.

In the past, Republicans were better at getting absentee ballot applications out to their voters. Republican voters were more likely to return their ballots and their ballots were more likely to count. Democrats were slower to take up absentee balloting, in part because of suspicions that more absentee voting results in fewer polling places and long lines in heavily black urban areas (a problem especially severe in Georgia).

But 2020 turned that on its head in Georgia, as in the rest of the country. There was a mass expansion of absentee voting (around 25% of Georgian voters voted absentee in 2020), emergency laws allowed vote drop boxes for the first time, and former president Trump led a protracted campaign delegitimizing absentee voting.

Unsurprisingly, absentee votes in Georgia favored Democrats. Equally unsurprising, Georgian voters report less confidence in absentee voting than in-person voting.

While proposed restrictions on absentee voting is unlikely to result in the mass voter suppression Democrats claim, thinly veiled partisan attacks on absentee voting do little to advance voter confidence. Instead, they further politicize the minutia of election law, which is likely to further undermine rather than boost confidence in our institutions.

In all areas of election administration, balance – between security and access; speed and accuracy – must be achieved to ensure confidence in process and outcomes. This requires careful, calm assessments and clear thinking.

In the current environment, where both serious and nakedly political proposals to amend election law are coming thick and fast, we should be sure to pay attention to the full range of proposals.

Some of the bills introduced in Georgia advance the rights of voters and have a shot at passing. For example, Georgia HB 71, which would allow voters to cast their ballot at a convenient precinct – one on a bus route or near their work – surely is a sensible, low-cost way of increasing access to the polls. Similarly, Georgia HB 59, which would deploy ranked choice voting in presidential primaries, would likely prevent the disenfranchisement of serving military by allowing them to rank back-up candidates in the case their first choice drops out. 

While there is the potential that in some states voter rights will contract in the aftermath of the 2020 election, a fuller view of state legislatures reveals many positive developments. Stay tuned.