The 2020 primaries so far in states like Wisconsin and Pennsylvania have shown a lack of readiness for voting in a pandemic. Many states are, at the same time, implementing new rules or laws, meaning voters and elections officials were already dealing with change before the health crisis hit. Journalists, advocates and policymakers are all looking to these experiences for lessons for November’s balloting.
Nate Persily is the James B. McClatchy Professor of Law at Stanford Law School and an expert in election law and administration.
We recently asked Nate Persily, the James B. McClatchy Professor of Law at Stanford Law School and an expert in election law and administration, about preparations for the November election and which issues reporters should be covering.
His responses about states’ preparedness for the election, new challenges brought about by the coronavirus pandemic and how the vote-counting process will unfold this year provide journalists with a number of reporting paths for smart election coverage at this moment, five months before the November election.
You can follow Nate on Twitter @persily.
Q: In a recent conversation with our election network, you talked about a worrisome shortage of poll workers. Last month, you suggested in a piece for the Philadelphia Inquirer that the National Guard might be helpful in polling stations given the COVID-19 pandemic. But, as you later noted on Twitter, that is no longer a realistic option amid the unrest we’re seeing now. How might states and municipalities get the help they need at the polls?
A: States need to do everything they can to address the widespread shortfall in poll workers. Election officials have said that they are facing a crisis when it comes to personnel for Election Day and early voting. Their most reliable volunteers, who are over the age of 60, on average, are sending the message that they will not be available this year, because of risks to their health. Most recently, officials in Anchorage, Alaska, reported that they lost 95% of their regular election workers. Local election officials need to know now that they will have access to a dependable work force to staff polling places on Election Day and at early voting centers and to assist in the logistics for mail balloting.
For its primary, Wisconsin called in the National Guard at the last minute, and it provided critical assistance at the polls. The Guard provided support to the civilian authorities. They were in plain clothes, unarmed, and did not show up in military vehicles.
However, the recent protests and violence in the wake of the murder of George Floyd, along with the concomitant crackdown by police and the National Guard, have made mobilization of the Guard for election purposes quite difficult. The last thing we need right now is any hint of militarization of polling places. The risk of violence at polling places is probably already higher than it has been in recent memory in the United States. If the Guard becomes an even more familiar force in quelling protests and supplementing police authority, their role in elections might become even more controversial.
Q: Who else might perform this function?
A: Although the Guard might still be available as a last resort, there are other classes of government workers who could be mobilized to deal with this crisis. Federal, state, and local governments should provide paid leave for Election Day to any employee who serves as a poll worker. Especially in states where Election Day is a school holiday, teachers should be paid to serve as poll workers. Moreover, universities should cancel classes for Election Day or at a minimum, excuse absences for students who serve as poll workers. Unless we find a substitute workforce for the existing elderly corps of poll workers, election officials will be shutting down polling places for lack of people to work them.
Q: You referred to the problems involving Milwaukee in your Inquirer piece. More recently we saw people in the District of Columbia stand in line to vote long after the city’s curfew had passed. It seems like the combination of the pandemic and the protests has created a situation that exceeds even the worst-case scenarios election officials might have planned for. How should they be thinking about this dual challenge for November?
A: The fundamental challenge that the pandemic poses concerns how to ensure social distancing while voting. The easiest way to do that, of course, is to vote at home where there is no chance of transmitting infection – hence, vote-by-mail or absentee balloting. Voters who are unable or unwilling to vote at home (and there are tens of millions of them!) will need to vote in polling places that maintain social distancing and sanitize facilities. This will require spacing out voters as they wait in line and when they are voting. It requires all the measures society is now taking outside the electoral context – masks, gloves, face shields, hand sanitizer, and six-foot spacing between people.
The problem right now is that jurisdictions do not have the “people, places, and things” they need to pull off the election. They need more poll workers and suitable polling places. With fewer polling places they will likely have more voters per polling place and therefore longer lines. They also need PPE [personal protective equipment] for polling places and all kinds of material for the mail balloting process. States will soon be competing against each other for election supplies as they have for ventilators and face masks. We need more resources to flow to the local officials to do all that is necessary to facilitate vote-by-mail and healthy polling places.
The protests pose a different but overlapping concern that manifests principally in polling places. Tensions were running high for this election even before the murder of George Floyd and the subsequent protests. If certain polling places have long lines and frustrated voters on Election Day, it is easy to imagine different scenarios of unrest and police responses. Similarly, depending on what happens between now and Election Day, one could be concerned about the efforts of poll watchers and other informal modes of intimidation.
But I want to emphasize that we do not see any evidence yet of these types of problems in the election context. Excessive concern about Election Day violence could itself suppress turnout. So, all of us commenting on election problems need to stick to the evidence that has emerged and shy away from suggesting that the worst-case scenarios are likely.
Q: We are now fewer than five months from the election. What suggestions do you have for journalists right now as they seek to deliver the most accurate and up-to-date information about elections to voters?
A: We desperately need more accurate reporting about the mechanics of the election. We need journalists to investigate what steps jurisdictions are taking to move to vote by mail and to establish healthy polling places. We need to know the extent of the poll worker shortage and the consolidation of polling places. We need to know more about the supply chain difficulties jurisdictions are confronting.
Q: How can journalists help voters understand what the process will look like in November?
A: We need journalists to explain to voters what changes they will confront this election season. Absentee balloting seems like an easy process, but many voters find it quite challenging. Journalists have a role to play in explaining how to request and cast an absentee ballot, and how to verify that it was counted. In the primaries, we are seeing thousands of disqualified mail ballots, because people fail to sign the outside envelope, their signatures do not match, or they are received too late.
Similarly, we need journalists to convey to people what voting in person during the pandemic will look like. We need greater awareness about the steps taken to ensure safety of polling places and the consolidation of polling places. We also need journalists to convey accurately the desperate straits of election officials, especially as they seek to find adequate numbers of poll workers for the fall. Most importantly, we need journalists to convey that the vote counting process will be different for this election: It is likely to take several days to verify and count mail ballots. We may not know the victor in the presidential election on election night, so journalists need to resist the urge to call the election until most of the ballots are in and counted.
Q: During a May 21 webinar with the Knight Foundation, you mentioned that states have about six weeks to make changes in their electoral systems to make voting safer in November. Are you seeing states make progress toward safer voting? If not, what actions might states and other jurisdictions take after your six-week deadline passes? Tell us more about the reasoning behind the six-week period and whether your original assessment has changed at all, in light of recent events.
A: The primaries are revealing the vulnerabilities in certain states. Georgia, Wisconsin and Pennsylvania (especially Philadelphia) experienced major problems. They are now “on notice” to prevent them for the fall. We will have additional primaries or special elections over the summer in many states, including Michigan, Wisconsin, and Florida, so states have the opportunity to do a dress rehearsal for November. Different states have different challenges. In some states, like Arizona and California, most voters have cast their ballots by mail in recent elections so making the transition to near-full vote by mail, as California has chosen to do, will not be as burdensome as it would be in a state with less experience.
Most major procurement decisions relating to mail balloting, such as high-volume sorters and scanners, must be made by the end of this month. Soon afterwards jurisdictions need to nail down their contracts for absentee ballot paper and envelopes. But the most important decisions, I think, revolve around polling place siting and poll worker recruitment. Jurisdictions need to know which polling places will be opening so they can inform voters in late September where they will be voting. And the number of available polling places is a function of the number of suitable and available facilities and the expected number of poll workers.
Apart from the tangible changes that need to be made, alterations of the legal rules need to be made soon as well. Local election officials need to know of any COVID-related changes to the deadlines for requesting, mailing, receiving, and counting ballots. State guidelines for polling places need to be published very soon, as local governments seek new facilities. The online voter registration systems that will prove ever more crucial in the absence of face-to-face registration drives need to be tested for vulnerabilities if changes have been made to adapt to the challenges COVID provides.
In short, we need all the major decisions made in the next month so that local officials can then work within those rules to try to pull off an election that, while not perfect, is at least professional, free, fair, and accessible.
For related resources about reporting on elections this year, join API’s Trusted Elections Network.