Threats to the Legitimacy of the 2020 Election

In a normal year, there are several threats to the legitimacy of elections in the United States. They range from structural, such as who gets to vote based on the rules set by each state, to the dramatic, including foreign malign interference through misinformation campaigns and the penetration of election infrastructure.

But this is not a normal year. While those threats are still on the table in 2020, the COVID-19 pandemic adds a new set of threats that are both more prevalent and more pernicious.

Election officials this year are being forced to adapt to an ever-changing pandemic landscape that upended plans during the presidential primary process and continues to impact the administration of elections. New challenges to legitimacy this year include an avalanche of absentee ballots that swamp the system, unusual staffing shortages that impact both in-person polling sites and the canvassing of ballots, and longer counting and reporting timelines during which candidates are incentivized to question election administrator impartiality.

These new pandemic-triggered threats may seem like mere administrative challenges. However, we believe they are significantly more important than that – they cut to the core of the democratic process itself.

Take, for instance, a voter who meets their state’s deadlines to request an absentee ballot. Due to reduced office staff capacity and an overwhelming number of absentee ballot requests, they do not receive their ballot with sufficient time to cast it. The voter did everything by the book and met their state’s deadlines, but they were unable to cast their vote—an obvious and concerning obstruction to the election’s legitimacy.

To help conquer these new and daunting threats head-on, in August the Bipartisan Policy Center brought election officials together from across the country to participate in a tabletop exercise on threats to the legitimacy of the election. We hosted more than 30 state and local election officials and their staff from all around the country to share ideas and game out how they would handle legitimacy threats in real time.

The tabletop exercise narrowed in on the three legitimacy threats that we see as most concerning heading into November: a tsunami of absentee ballots; staffing shortages; and unexpected issues with reporting and counting the vote.

Absentee Tsunami

The Bipartisan Policy Center predicts that absentee voting rates for the November 2020 election will range from 50%-70% nationwide. This would represent a doubling or tripling of the absentee voting rate over the 2016 election. Some states are well-equipped to handle such a nationwide increase either because they have been transitioning to a ballot-by-mail format for years or because they have had a high percentage of absentee voting over many cycles, leading policymakers to improve the laws that undergird the process.

Five states—Colorado, Hawaii, Oregon, Utah, and Washington—were already going to automatically send ballots to all voters in 2020. That is how those states administer elections and the policies in those states reflect the realities that come with a huge percentage of ballots by mail. (It should be noted that these states generally have some in-person voting option as well.)

Twenty-nine other states and the District of Columbia allowed no-excuse absentee voting at the beginning of 2020, though not all of these had made changes to the upstream or downstream policies that facilitate such an option. The remaining 16 states required voters to provide excuses to cast an absentee ballot.

Many of the no-excuse states and excuse-required states have made changes to facilitate absentee voting this fall. These changes could include: proactively sending absentee ballots to all voters; sending absentee ballot applications to all voters; and expanding who is eligible to cast an absentee ballot in November. The problem is that most states have not built their processes for the rapidly increased volume of absentee ballot requests and ballots themselves that they can expect to receive for this election.

Political parties, candidates, and others are inundating voters with paper absentee ballot requests that, when returned at the volumes expected, are likely to swamp some smaller elections offices where the process must be handled by hand. If many of these requests come into elections offices near the deadline to request an absentee ballot, it is possible that elections offices may not be able to process them fast enough to get ballots to voters, even when they technically meet statutory deadlines. Statutory deadlines that for years have left election administrators scrambling as they close in on Election Day are simply no longer feasible at a certain volume of requests.

Another challenge to the legitimacy of the absentee voting process comes from the voters themselves. Many will be using absentee ballots for the first time in 2020, and we know first time voters make errors. While absentee ballot rejection is rare—the acceptance rate in 2016 was near 99%—the 1% of ballots that were rejected were generally invalidated due to problems validating the eligibility of the voter. This translates into missing signatures or mismatched signatures that were not cured before Election Day.

Staffing Shortages

Election administration requires people. Polling places do not manage themselves; absentee ballots only enter the mail stream after election office staff makes it happen, and ballots need to be canvassed by humans. This year, however, social distancing requirements have made tasks that require a high concentration of people within confined spaces for a long period of time much more difficult to complete.

In this pandemic-impacted election, staffing shortages are likely to impact the voting experience in ways both visible and invisible to voters. The visible impacts include a reduced cohort of poll workers that leads to a consolidation of in-person voting options and potentially longer lines and remaining polling places. Invisible impacts are delays in the turnaround time on processing absentee ballot applications and ballots, as well as longer canvassing timelines to reflect space limitations and the limited number of staff in one place at one time.

The potential threat of staffing shortages was the highest ranked concern for the election administrators who took part in the Bipartisan Policy Center’s tabletop exercise in August. They expressed specific concern about polling place staffing levels, especially late dropouts due to COVID-19 close to the start of voting when finding additional replacements may be an impossible task. But the bigger staffing shortage risk in 2020 is right now.

Election administrators, the chief election officials in their jurisdictions, typically handle myriad responsibilities. While the largest jurisdictions in the country tend to be well staffed, the vast majority of jurisdictions in the United States have fewer than 50,000 voters. These elections offices have only a handful of full-time staff. The elections staff can hire temporary workers during canvassing, and nationwide, there are typically more than one million poll workers on Election Day. But some functions are highly technical and require the knowledge and involvement of the chief election official.

In mid- and late-September, jurisdictions across the country will begin sending absentee ballots to a larger percentage of the electorate than ever before. Verifying voter eligibility and ensuring that voters get the correct ballot is not easy to train temporary workers to do. If outbreaks in any area of the country include the chief election official in a jurisdiction, voters in that county may see huge delays with absentee ballots. The absence of key elections staff prior to Election Day could leave voters scrambling with diminishing options.

One other staffing shortage that could impact voters’ confidence in the legitimacy of the elections concerns the post-election canvassing process. The election night reconciliation and days of vote canvassing, verifying, tallying, etc. is a hands-on process. Elections offices tend to be in relatively small suites, and while some can expand during this pandemic election, there will be real limitations on how many people can be in a room at a time. This reality could impact the counting process.

Reporting and Counting

Election night results are never final. In fact, there are lot of ballots that can never be included in those very first results released at the close of polls in each state. The ballot tallies that are released (and when) vary greatly from state to state, and the processing of ballots will be different than most states have dealt with during prior elections.

The most variation in processing comes with absentee ballots. Several factors impact how and when absentee ballots are counted. First, a state must verify the validity of the absentee ballot and the eligibility of the voters. Second, the ballots must be separated from outer envelopes and privacy sleeves for sorting. Third, the ballots can be tallied by a counting machine similar (if not identical) to the one used by voters casting paper ballots in the polling place. Then the absentee totals can be reported. But within these four steps is a full array of options.

States determine the validity and eligibility of absentee ballots in a few different ways, but the most common one is signature matching. Some states do this as the ballots arrive at elections offices. Others hold the incoming ballots until after Election Day. This variation impacts legitimacy because states that are checking for eligibility in real-time can offer voters the chance to cure deficiencies in their eligibility check.

For example, if a voter simply forgets to sign the ballot envelope or the signature provided does not match clearly enough, a voter can provide identification sufficient to get their ballot counted. In states that wait to touch ballots or perform verification until late in the process right before—or even after—Election Day cannot offer potentially eligible voters a full process to rectify their ballots.

Eligible voters will have been effectively disenfranchised.

The processing of ballots—specifically when it can happen—impacts legitimacy too. Several states can open ballot envelopes, sort ballots by ballot style, and even run them through tabulators. Doing so typically results in lightning quick releases of absentee voting data on election night. For example, Florida has one of the most generous ballot processing laws in the country. By about 8:00pm ET on November 3, Florida will report all the absentee ballots received before Election Day, which will almost definitely be a larger proportion of the Florida electorate than ever before.

Slower results reporting is not a problem administratively. If you ask most Americans, they want the results to be accurate. Many would likely claim that it is their paramount concern. We agree. However, in a highly polarized year like 2020, delays in results or wild swings in vote totals (as more votes get tallied) will incentivize candidates to claim misconduct on the part of election officials. Even scarier, we can imagine cases where a candidate claims a victory they have not yet earned and then calls for an end to the vote counting, well ahead of statutorily-allowed deadlines.

The long trend over the past two decades toward more absentee voting already had BPC concerned prior to the pandemic. That is why our Task Force on Elections recommended policy changes in January 2020 that would have addressed many of the threats to the counting process with which election officials must contend. The pandemic only magnified and accelerated our concerns, and there is limited time and few levers left to pull to address these weaknesses in some states’ election policies.

The election officials and their staff who participated in the tabletop exercise were split into small groups that were focused on one legitimacy threat; the group was then tasked with providing concrete and actionable solutions to the issues at hand. Across the board, two themes continually emerged in participants’ solutions: thorough contingency planning and proactive voter outreach.

For specific recommendations on voter registration, casting a ballot, and counting the vote, see our January 2020 report on Logical Election Policy.

Plan for the worst, hope for the best.

If we knew exactly what was going to happen in the weeks leading to Election Day, we would never have needed to have a conversation about threats to election legitimacy. It is precisely because we do not know how the election will play out—and what novel, unimaginable challenges might arise—that contingency planning is essential.

Rather than deal with challenges as they happen, election administrators must plan now for how they will respond to legitimacy threats—like coronavirus outbreaks among key elections staff, poll worker absenteeism, and last-minute changes, including those caused by litigation—with little time and under intense public scrutiny. Planning ahead also gives administrators time to enact preventive policies to ward off threats before they happen.

Specific contingency plans will depend on the unique characteristics of the jurisdiction in question. However, participants in the BPC Tabletop Exercise made several recommendations that apply across the board. Where possible, election officials should take the following steps to prepare for legitimacy challenges:

• Separate elections office staff into two isolated teams. This way, if a COVID-19 outbreak occurs among staff, half of the staff will still be able to work while the rest goes into quarantine.
• Recruit back-up poll workers who can be held in reserve on Election Day or called in immediately if an existing worker calls in sick or does not show up on Election Day.
• Cross-train staff in as many areas as possible to keep the base of expertise broad should employees need to fill in.
• Have a back-up plan in place in case there’s an issue with a vendor on Election Day. For example, work with the National Guard, Civilian Air Patrol, of Department of Public Service to distribute supplies to polling places.

Develop a proactive voter outreach and public communications plan.

Even with extensive contingency planning, setbacks are still likely to occur. If responded to appropriately, unexpected challenges do not have to threaten the election’s legitimacy. Developing a plan to communicate with voters about unexpected challenges will go a long way in promoting both legitimacy and transparency.

Specifically, we encourage election officials to:

• Develop relationships with local media. If a problem occurs, take advantage of the heightened media attention to disseminate the vital information that voters need. Voters need to hear election news from trusted sources of information. Ideally, election administrators are making the connections with the local media now, so journalists know where to turn in the heat of the election.
• Utilize ballot tracking options that are already available, such as Informed Visibility and Ballot Scout. Enabling voters to track their ballots can increase confidence in the voting process and helps election officials anticipate the volume of the incoming ballots.
• Engage communications staff in important calls or meetings, and have statements, social media posts, and emails prepared for a variety of scenarios. The weeks before and on Election Day are always hectic, but election administrators generally know the broad outlines of what could happen in their jurisdiction. Being prepared saves time when the crisis occurs.
• Communicate any changes to results reporting processes—especially those relating to how potential errors will be addressed—to the public as soon as possible before the election takes place.

With Election Day rapidly approaching, many Americans are growing increasingly concerned about dramatic, structural threats that risk undermining American democracy. The public is right to be concerned. This year, we are facing what could end up being the biggest crisis in election legitimacy in more than a century.

The nature of the threats to the legitimacy of election 2020 goes far beyond unsubstantiated claims of voter fraud and malign foreign influence.

The true test of election legitimacy this fall will lie in how we respond to the smaller, more endemic threats that are built-in to our election infrastructure. From a tsunami of absentee ballots to staffing shortages to issues with counting and reporting the vote, exhaustive contingency planning and aggressive public communication is our best bet at warding off legitimacy threats of all shapes and sizes this November.