The current Covid-19 pandemic has increased calls nationwide to permit or even mandate voting by mail for the 2020 election. Confidence in the validity of the election results will be forever questioned if there is extensive mail-in voting.
“The touchstone of a democratic nation involves the right of its citizens to vote and elect its leaders.“
So begins an article in the Villanova Law Review in 1995. (Michelle L. Robertson, Election Fraud – Winning at All Costs: Election Fraud in the Third Circuit, 40 Vill. L. Rev. 869 (1995).) A hallmark of the democratic process is the secret ballot. Walk-in voting protects the integrity of the secret ballot by providing some form of voting booth that is shielded from prying eyes, and, in most cases, protected against intrusion by other than the single voter. Usually, no one other than the actual voter is allowed in the booth. The voter is thus free to vote however he or she wishes regardless of whatever the voter may have told an employer, union official, or other interested person.
Mail-in voting removes these vital safeguards. Even if the registered voter safely receives the mailed ballot, there is no safety, security, or secrecy until it is finally placed in the return envelope and mailed or deposited in a secure drop box. There is no guarantee during that period of time that it will actually be voted by the registered voter or according to the registered voter’s wishes. Anyone able to exercise undue influence over the registered voter is able to dictate how that ballot will be voted. Unscrupulous campaign workers, union officials, employers, block leaders, ward leaders, or thugs can insure that those ballots are voted in a particular way.
The law review article mentioned above discusses a case in Pennsylvania, Marks v. Stinson, that describes in detail how campaign workers were able to affect the outcome of a close election contest through the use of absentee ballots. The process used in that case with minority voters could be used with all kinds of voters if extensive voting by mail is permitted. In that particular case, minority voters were deceived by campaign workers into believing that the state had created a “new way to vote.” Then, these “campaign workers told certain minorities that they could now vote from the convenience of their home, via the absentee ballot, rather than proceeding to the polls on election day.”
With near universal mail-in ballots, the potential for massive fraud is created. By means of subtle or not-so-subtle threats, millions of voters can be influenced or compelled to cast their ballots or have them voted in a particular way by those with power or authority over them.
Once the absentee ballots were received, the campaign workers “assisted the minority voters in completing their ballots. This assistance included filling out the ballots without explaining the true nature of the document to the voter. In other instances, the workers instructed the voter how to complete the ballot, or forged the ballot.“
Absentee ballots usually account for only a fraction of the total number of ballots cast in an election. Only in close contests are they likely to have a significant effect on the final outcome of the election. But with near universal mail-in ballots, the potential for massive fraud is created. By means of subtle or not-so-subtle threats, millions of voters can be influenced or compelled to cast their ballots or have them voted in a particular way by those with power or authority over them.
Employers can demand that their employees bring in their ballots to be voted as the employer dictates. Union leaders, ward leaders, or block leaders can do the same. Once the ballots are voted, those exercising the influence can insure that the procedural requirements for signing and mailing the ballots to the election officials are properly followed.
While there are laws against the conduct described, those laws are unlikely to deter the conduct. Employees are unlikely to risk the loss of their jobs by reporting the illegal conduct of their employer. Unionized workers are unlikely to risk incurring the wrath of their leaders or fellow union workers by reporting the unlawful conduct. Even government workers are unlikely to report unlawful influence by their superiors. The ability of a superior to adversely affect the career of a subordinate is simply too great for most subordinates to chance by blowing the whistle.
If the 2020 election proceeds with significant mail-in voting, it is extremely likely that whichever side wins, the losing side will claim that the results are invalid. The 2016 election was conducted primarily by walk-in voting. Yet, today, more than three years later, there is still considerable reluctance on the part of a great many to accept the validity of Donald Trump’s victory over Hillary Clinton. Regardless of whether they truly believe that voter fraud or Russian meddling was the cause, they do not accept the results of the election.
With the electorate significantly divided, Democrats have refused to work with the President or compromise on major issues. The practical consequence of that is significant paralysis of the government, both domestically and in foreign affairs.
There is little to no reason to believe that more Trump supporters or Biden supporters will avoid voting in person due to their fear of Covid-19. Those who do show up at the polls are, therefore, likely to be a valid representation of all those who would have shown up, but for fear of the pandemic. The major benefit of walk-in voting is the reduced capacity for fraud and greater acceptance of the result by the overall public.
The secret ballot is too important to ignore. Mail-in voting should be extremely limited.
Howard Lurie is Emeritus Professor of Law, Charles Widger School of Law, Villanova University