The Agenda

OPINION | Coronavirus

The Simplest Way to Avoid a Wisconsin-Style Fiasco on Election Day

If voters don’t get absentee ballots on time, states can offer an easy-access write-in ballot—an option that already exists for Americans overseas.

Wisconsin election

The fiasco surrounding Wisconsin’s April 7 primary election is still fresh: In the middle of a viral pandemic, crowded, in-person voting took place despite the governor’s stay-at-home order, while tens of thousands of voters did not receive absentee ballots in time to cast eligible votes by mail. Two election eve judicial decisions added to the confusion.

Unfortunately, the November elections are at risk of looking similar. With coronavirus likely to remain a threat for months, some form of voting by mail, including in states historically unfamiliar with high rates of absentee voting, will be a public health necessity. But one issue with mail-in ballots, whether a state uses them just for absentee voters or for the entire election, is that they need to be postmarked or delivered to a polling station no later than Election Day. If local election offices can’t handle the increased demand for absentee ballots and voters don’t receive their ballots in time to cast them by Election Day, those voters are disenfranchised. And that, in turn, could lead to heated, possibly prolonged disputes about election outcomes.

But there’s a fairly straightforward way Wisconsin could have avoided its mess—and the rest of the country could do so in the fall. In fact, this solution already exists, albeit in a limited context.

For any voter who requests an absentee ballot on time but does not receive it on time, states should have a backup option: an easily downloadable absentee ballot that voters could print and mail in as a substitute. Precisely such an emergency ballot—called the “Federal Write-In Absentee Ballot,” or FWAB—is already an option for military and overseas voters.

The FWAB was created as part of a 1986 law that sought to protect the voting rights of U.S. military service personnel and overseas civilians. Quite simply, the FWAB is a blank, write-in ballot that eligible voters can download at a range of websites, print, fill out and mail to their local election jurisdiction, in lieu of a regular absentee ballot. In addition to spaces for the voter’s preferred candidates, the form also has fields for information the local election jurisdiction needs to verify the voter’s eligibility, including Social Security Number and state driver’s license number.

While states are required by federal law to accept FWABs from military and overseas voters, a version of the FWAB does not yet exist for domestic voters—essentially because the need for it previously has not been apparent. A bill recently proposed by Senators Amy Klobuchar and Ron Wyden includes a provision to extend the FWAB’s potential use to domestic voters, but the bill faces many hurdles to passage. Even if it goes nowhere, state legislatures or Congress could adopt a stand-alone measure calling for local election jurisdictions to accept either the existing FWAB or something similar.

For this idea to be acceptable on both sides of the aisle, it must be carefully circumscribed. First, it should be available only to those voters who do not receive regular ballots that were requested on time, not to any voter who belatedly wants to cast an absentee ballot. Second, to attract broader support, the measure could be limited to just the November 2020 election, even if in principle it might be applicable to future emergencies. Third, states could have flexibility in the exact design of their own emergency ballot—perhaps even giving voters the option to print out a duplicate of the regular ballot that they did not receive, or tailoring the FWAB to require whatever additional information the state deemed necessary to ensure the integrity of the voting process.

To be sure, processing FWABs is much more cumbersome for election officials than processing regular mail-in ballots. FWABs require careful cross-checking to ensure that no voter casts two ballots. For each FWAB, officials also must typically prepare a duplicate, regular absentee ballot for purposes of tabulation. But these costs and burdens, though not insubstantial, pale compared with the risk of significant unconstitutional disenfranchisement that otherwise might occur. Moreover, these administrative tasks will arise after the election, which could prolong the period of tallying votes but with much less risk of eligible votes going uncounted. In contrast, the burden of mailing out an inordinate number of regular absentee ballots before the election can (and, in Wisconsin, did) overwhelm election workers in a way that results in actual disenfranchisement.

One of the most promising aspects of a backup ballot system is that—at least in theory—it should satisfy both those on the left who want to ensure that all eligible votes can be counted and those on the right who stress integrity and security in the enforcement of election rules. The Wisconsin case shows why.

In the leadup to the state’s primary, a federal district court attempted to extend the deadline for returning absentee ballots by six days. But the Supreme Court—in a 5-4 ruling along ideological lines—rejected the extension on the evening before the election. The four liberal dissenters made the case that voters had done nothing wrong—they were entitled to vote absentee, and they complied with state law in requesting their ballots—yet they faced wrongful disenfranchisement because the coronavirus disrupted the election and political leaders failed to develop an adequate response.

The five justices in the majority, however, were not satisfied with the six-day extension, since it would have let some voters cast ballots after the established closing of the polls. Imagine a similar remedy in November: Should some voters be allowed to cast ballots on November 4, 5 or thereafter, when Election Day is November 3? Even if both sides might in theory benefit equally from an official extension, in practice the side seeking the extension often is better able to capitalize on it. Moreover, an extension of a presidential election in just one state or locality, when all others have concluded their voting on the scheduled date, could wreak havoc, as campaign workers descended (virtually or literally) on the jurisdiction to promote turnout and litigation exploded.

An FWAB-style emergency write-in ballot would avoid the wrongful disenfranchisement that understandably troubled the Supreme Court’s dissenters, but those voters could still mail backup ballots before the polls closed, thus satisfying the concerns of the Supreme Court’s majority. (All nine members of the court were prepared to allow ballots to arrive later, with the majority simply insisting that they be cast on time—a requirement that a backup ballot satisfies.)

The ideal scenario for November would be for an FWAB-like remedy to be adopted legislatively, by Congress or state legislatures, well in advance of Election Day and with appropriate planning. But the same option also would be available as a judicial remedy. For instance, if a court case akin to the claim before the Wisconsin federal district court arose in the fall, the court could order use of the FWAB, or something like it, without creating the problem that provoked the reversal in the Supreme Court.

What’s important now is that we begin a targeted discussion of how to apply the FWAB idea to meet the challenge of the moment: operating a workable electoral system in the midst of the pandemic that protects the right of all eligible voters to participate. Occasionally, it is possible to have one’s cake and eat it too. An FWAB-like backup does just that, avoiding disenfranchisement while providing that all ballots be cast on or before Election Day. Any win-win capable of satisfying all nine justices is something we ought to be vigorously pursuing right now.

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