The 'hanging chads' of 2020: More than 1 million mail-in ballots could be rejected this election

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31 October 2020

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More than 1 million mail-in ballots could be rejected in the 2020 election if recent trends hold up, experts say, raising fears that the rejections could swing close races.

Mail-in ballots have been rejected at around a 1% rate in recent years, though 2020 is expected to be on the higher end due to the number of voters casting ballots by mail for the first time, mail delivery issues at the U.S. Postal Service, and court decisions disenfranchising voters whose ballots were cast by Election Day but do not arrive in time.

"It is possible millions of ballots will be disqualified — at least one or two million due to the normal 1-2% disqualification of mail-in ballots, primarily for errors in completing the ballot, such as a signature problem or late submission," Richard Briffault, a professor a the Columbia School of Law, told Salon. "Of course, in a close election, rejecting thousands of ballots would be enough."

Just under 1% of mail-in ballots were rejected in the 2016 election, according to the Election Administration and Voting Survey, and about 1.2% of all mail-in ballots cast between 2016 and 2018 were disqualified, according to an analysis by ABC News.

But researchers at Dartmouth University found that first-time mail-in voters were about three times more likely to have their ballots rejected. More than 51 million mail-in ballots have already been cast in the 2020 election. With a surge in mail voting due to the coronavirus pandemic, about 2% of mail ballots were rejected in this year's primary elections, according to research by University of Florida professor Michael McDonald.

Ballots are rejected for several reasons. About a third of all mail-in ballots rejected in 2018 were tossed because of problems with voter signatures, which in most states must match the signature on file. Some states also require a witness signature. Some ballots are also rejected because they are missing information like addresses or dates. Ballots can also be rejected if voters incorrectly bubbled in their candidate selection.

More than a quarter of mail-in ballots rejected in 2018 were disqualified because they were not received by the state's deadline. Some states require ballots to be received by Election Day, while others allow ballots to be counted if they are postmarked by Election Day but arrive several days later.

Some states allow voters to fix or "cure" their ballot before the election but most states have no such mechanism.

Andrea Mercado, executive director of the grassroots racial justice group New Florida Majority, told Salon that educating voters to avoid having their ballot rejected has been a "massive undertaking."

"It's been a challenge to make sure people are educated on how to properly fill it out, how to properly sign the outside of the envelope," she said. "And also that they don't have to put it in the mail, they can put it in a drop-box. And then most importantly that their ballot has to be received by Election Day. It can't be postmarked by that date, it has to be received by that date."

Tens of thousands of ballots have already been flagged for rejection in states like Florida and North Carolina, though groups like Mercado's have recruited thousands of volunteers to help voters cure their ballots in states where it's possible. Mercado said the percentage of rejected ballots has not increased to a "number that gives us cause for great alarm" but the group is focused on the disproportionate impact of the ballot rules on communities of color.

"We're seeing that here in Florida and it's registering to us because we know that the GOP has used their stranglehold on power … to pass laws like the signature match law that disproportionately disenfranchises Black and brown communities," she said.

About 0.47% of mail-in ballots have been flagged for rejection in Florida and about 1.2% of mail-in ballots have been flagged in North Carolina. Florida's 2018 Senate race was decided by just 10,033 votes. North Carolina's 2016 gubernatorial race was decided by just 10,277 votes. A recent study by researchers at the University of Texas at Austin found that there is greater than a 10% chance that the Electoral College could be decided by just 20,000 votes in a single state.

These rejections don't just affect the presidential race but every down-ballot election as well.

"Whether or not the rejection rates are higher enough to necessarily cause the presidential election to go one way or another, there is reason to think that these could be shifting local races, like races for local district attorneys," Kevin Morris, a researcher at the Brennan Center for Justice, told ABC News.

"The vote-by-mail ballot rejections are going to be the hanging chads of 2000," Daniel Smith, a political science professor at the University of Florida, told NBC News.

Smith estimated that more than 100,000 mail-in ballots could be rejected in Florida alone based on the rate of rejections in the primaries and Philadelphia City Commissioner Lisa Deeley warned that more than 100,000 ballots could be rejected in Pennsylvania due to a rule barring "naked ballots," or those submitted without a second privacy envelope.

"Every vote cast can affect the outcome of the election. Every ballot that is rejected could also potentially swing the election and the Electoral College. Rejected ballots can be the margin of error that swings the election results in certain states," Hannah Fried, the national campaign director at the voting rights group All Voting is Local, told Salon.

Fried said "naked ballots" have been a "confusing issue" for voters, particularly in states like Pennsylvania.

"Mail-in ballots submitted without the privacy sleeve will be considered 'naked' and not counted. If a voter returns an absentee or mail‐in ballot but the ballot was rejected by a county elections official, and the voter believes they are eligible to vote in person, the voter may cast a provisional ballot on Election Day," she said. "As long as their mail-in ballot was rejected, their vote will be able to be counted. For mail-in ballots, signature matching and/or accidentally writing your birthday on the 'outer envelope' instead of the date cannot be the sole basis for ballot rejection."

Fried said the "most important thing" Pennsylvania could have done is install uniform cure procedures for each of the state's counties. The state currently does not have any process that lets voters address naked ballot issues.

Fried stressed that voters should "get comfortable with the fact that we likely won't know the election results until days or weeks after Election Day" due to the influx of mail-in ballots.

"The pandemic has disrupted every part of society and the election is no exception," she said. "Different voters will make different choices about how they can vote safely during this pandemic. Some people will vote in person with a mask, some will vote by mail. While having multiple options for voting keeps people safe and socially distant, it also means election officials will need to take a little longer to count and verify that all the ballots are valid."

The U.S. Postal Service and voting rights advocates have also warned that ballots mailed after Oct. 27 may not arrive in time to be counted.

"The time for mailing in your ballot has passed," Mercado said.

Voters should use drop boxes to submit their mail-in ballots or vote in person either at an early voting location or their assigned polling place on Election Day to ensure their vote is submitted in time.

President Trump has repeatedly urged his supporters to avoid casting ballots by mail due to widely debunked claims tha mail ballots are plagued with fraud. Millions of Democrats are expected to vote in person on Election Day as well.

A recent investigation by Vice News found that nearly 21,000 polling locations have been closed ahead of 2020 and primaries in states like Wisconsin and Georgia were marred by poll closures and excessively long lines.

Mercado said the New Florida Majority is monitoring for issues with lines and other voting difficulties but some groups say the closures already pose an impediment to some voters.

"Having polling locations farther away or that are more crowded creates a hardship for many workers, particularly blue-collar and hourly workers," Derrick Johnson, the president of the NAACP, told Vice. "This level of doubt this late in the process is concerning. There are so many new variables on top of old problems. We're talking about how voting will be carried out in the midst of a pandemic. We just don't know."

Democrats have been far more likely to cast their votes by mail and Republicans have long pleaded for Trump to stop sowing doubt about mail-in voting to no avail. Rick Hasen, an election law expert at the University of California Irvine School of Law, argues that Trump is "shooting himself in the foot" by discouraging mail voting and fighting mail-in ballot expansions in court.

"He's discouraged his supporters from voting by mail, and some will have trouble voting in person on Election Day," he said.

Voting rights groups, meanwhile, are working overtime to ensure that voters, particularly groups that have been disproportionately impacted like Black and Latino communities, have their voices heard.

"In the face of voter suppression, Black and Latino communities are organizing to address some of the structural problems in our democracy," Mercado told Salon. "While there are agents of chaos that seek to sow confusion and distrust at the highest levels of our government, there are also thousands of organized volunteers and community members that are doing everything they can to protect and expand democracy."

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