The coronavirus has already upended America’s election process.
Sixteen states have postponed their primary elections due to the pandemic. Wisconsin, a crucial toss-up state, forced voters to wait in five-hour lines during a shelter-in-place order for its election on April 7.
Beyond the logistical obstacles, the pandemic is a big problem for anyone already worried about voting rights. Republicans have spent the last decade or so pushing measures to make it harder to vote, including voter ID, purges of voter rolls, and closing polling places. The John Roberts Supreme Court has been right there with them.
And now, as just seen in Wisconsin (and more recently in Kentucky), the Republican Party is eager to exploit the coronavirus crisis to advance this agenda and put up obstacles for voters living through stay-at-home orders and worried about their health. (It’s worth noting that their tactics in Wisconsin may have backfired.)
David Daley has been reporting on America’s electoral system for the last several years. His 2016 book, Ratf**ked, was a deep look at the GOP’s decade-long gerrymandering strategy and its impact on voting rights. Daley’s new book, Unrigged, is about the grassroots efforts to undo the damage done by that strategy and make the election process freer and fairer. A lot of progress has been made, Daley argues, but much of it could be reversed by the coronavirus.
I spoke to Daley about what a reversal might look like, whether the recent debacle in Wisconsin is a sign of what’s to come, and near the end, I asked him about the potential nightmare scenario for voting rights in November.
A lightly edited transcript of our conversation follows.
You called the GOP’s 2010 gerrymandering plan “the most audacious political heist of modern times.” Did the Democrats ever really recover from it?
No. The GOP’s gerrymandering plan (called REDMAP) has shaped our politics for the last decade.
There are 59 million Americans right now that live in a state in which one or both chambers of the state legislature are controlled by the party that won fewer votes in 2018. Fifty-nine million of those people live in a state where Democrats won more votes and Republicans won more seats.
That’s the end result of this redistricting cycle, and these maps have held that strong in all of these state legislatures. So there’s no question that Democrats haven’t recovered from this, and it’s hard to appreciate how much this distorted our politics.
There’s a ton to say about this, but I want to pivot to what’s happening right now. We’re having this conversation just days after the Supreme Court handed a major defeat to Democrats in Wisconsin who tried to make it easier for people to vote during the coronavirus pandemic. The Republican gambit failed in the end, but is this a sign of what’s to come in November?
Wisconsin was a dress rehearsal for what we’re going to see in November. I think it’s entirely likely that in many states, in many cities, it’s going to be absolutely impossible to conduct the kind of traditional in-person voting that this country has gotten used to. We’re going to need to expand the vote-by-mail options for more people.
What happened in Wisconsin is that 1.2 million people applied for absentee ballots. It overwhelmed these underfunded election boards in the state, and they weren’t able to handle it effectively.
The post office this week still had ballots in envelopes stacked up in many places across Wisconsin. And what you saw was that the governor, a Democratic governor in this case, stepped up and said, rightly, that it’s not safe to ask people to vote [in person] in the middle of this [coronavirus] crisis. And Republicans forced the matter into the courts.
Can you imagine a similar situation in November? I can, and it’s horrifying. This is how a public health crisis turns into a constitutional crisis.
Something you’re hinting at that’s worth making explicit is Republicans are likely to exploit the confusion that will invariably result from trying to pivot to a mail-in election in such a short time. That’s a huge deal because a key strategy on the right is to create the impression of illegitimacy so as to undermine the whole process.
Exactly. If it’s impossible to hold in-person voting in places around the country, if we have not taken appropriate steps to run an efficient, safe, and secure mail balloting, we lay the groundwork for a brutal fight about the legitimacy of the election, and that will lead to the courts stepping in. And we just got a pretty good sense from the US Supreme Court about how they will rule if similar questions come before them.
What are the steps we need to take now to make this transition to mail-in voting successful?
In two-thirds of American states, you can request an absentee ballot for absolutely any condition without an excuse. In one-third of our states, you need a specific excuse, and in many of those places, a pandemic is not enough. So we need Congress to take action to ensure that all Americans have the right to cast a mail-in ballot.
We [also] need to be passing laws in states that allow election officials to begin opening and counting and preparing ballots ahead of Election Day. In Pennsylvania and Michigan, for example, election officials are barred from beginning to open and count the ballots prior to Election Day. That might be okay if mail-in ballots are a small percentage of the overall vote, but if it’s a large percentage, they’re going to be deluged, and you’re not going to have results out of these states until much later than usual, which, of course, just opens the door to more rhetoric about voter fraud and the like.
Election boards need to be funded properly as well. This is why the Brennan Center and others have called for at least $2 billion for states to pay for the ramping up, for the printing of ballots, for the return postage, for the optical scanners and the training of employees. These are the things that we have to be thinking about now.
Six states already vote entirely by mail. Is that a model other states can easily replicate?
Oregon has been doing this for a long time. A lot of these states have had time to master this process. There are a lot of technicalities that have to be worked out, but there are models that are available for states to emulate.
What I think is important is that the states that do this are able to do it successfully and without voter fraud. They need to be able to do it securely and in a way that drives up turnout among voters of all parties. We know this can work. We know that it’s nonpartisan, but these are uncharted waters, and if we want to safeguard the election this fall, we need to be moving quickly in this direction.
The benefits of mail-in voting are obvious enough, especially in a pandemic, but are there any underappreciated downsides? Could the process be rigged or hijacked?
Rigged or hijacked? No, I don’t think so. Indeed, by most indications, [vote by mail] makes it really obvious if someone is trying to rig or hijack it.
Just look at North Carolina in 2018 when there was an absentee ballot scandal going on there. It was pretty clear, and people were able to report, “Hey, there was this guy, and he came to my door and said he was collecting my ballot.” Oregon did a study of more than 100 million ballots that had been cast there by mail since they started, and they found 14 cases of possible fraud. So, 14 cases out of more than 100 million ballots — that’s a pretty low number.
But we do have to think about places where the mail is not safe or secure or where post offices are far away from folks. I’m thinking particularly about Native American tribal land. In the new book, I talk about the impact of vote-by-mail on Navajos in San Juan County in Utah, a county the size of New Jersey where there are only three post offices in gas stations, and people might go to them once a month. We have to do something to ensure that if you live on Native American land, if you live deep in rural America where there may not be easy post office access, that your right to vote is still protected. And the same for public housing where mailboxes may not be as secure.
The other question often falls around signature verification. We’ve seen that young people and minorities most often have their votes thrown out for improper signature verification. It happens at a higher rate for those groups, and states can fix that. You can simply pass a statute that says if you’re throwing out a ballot for that purpose, you have to contact the voter and allow them to come in and verify that ballot.
All of this speaks to how thoughtfully the process needs to be constructed.
You gestured at something I think we have to just say plainly: Republicans are actively trying to suppress minority votes because they know that will help them win elections. Does an all-mail-in election create new opportunities for voter suppression?
I think that given what we’ve seen over the last decade, we would be naive to think that the Republican Party would not attempt to twist every electoral rule that they can in their favor — they’ve become very good at this over the last decade. You’ve already begun to see President Trump suggest that he supports mail-in ballots for military members and senior citizens, so they’ll seek to limit access to specific demographics that they know are more likely to be on their side.
A really important question here is whether you provide postage for return ballots. A state like Washington that does all-mail ballots covers return postage. If you don’t do that, then you are creating what could potentially be seen as an additional poll tax. And as I was saying earlier, the issue of signature verification has been shown to have a more negative effect on minority voters and younger voters and that has to be looked at as well.
So yeah, there are always going to be fresh avenues for voter suppression, and that’s just a battle we’ll be waging no matter how we vote.
What’s the biggest nightmare scenario this November?
Article 2, Section 1 of the Constitution gives state legislatures the right to essentially appoint electoral college electors. The nightmare scenario is that gerrymandered state legislatures in swing states appoint electors in ways that may or may not be reflective of the wishes of that state.
That seems pretty damn unlikely, but what would it look like?
Think of a swing state like, say, Wisconsin, which we know will be close in November. I think it came down to something like 22,000 votes in 2016. So let’s say Wisconsin isn’t able to safely hold in-person voting in Milwaukee on Election Day. And let’s say we end up with an outcome that’s highly disputed. In that case, the ultimate authority to appoint electors would sit with the state legislature. So the nightmare would be uncertain elections decided by gerrymandered state legislatures in ways that don’t reflect the wishes of the states.
Can I try to end this on an optimistic note?
We saw in 2018 that a lot of Americans were willing to get engaged and fight for voting rights, and they made huge gains. They circulated petitions and built organizations and won big change, and I think we ought to be heartened by it even in these dark moments. The battle for voting rights has never been a straight line, but what matters is that we’re all engaged in that fight.
Dr. King talked about the moral arc of the universe being long but bending toward justice. I think what we have all learned is that it doesn’t bend by itself; it only bends when we all get involved and actively take hold of it and push it in the right direction.