Paul Sancya/AP Photo
Michigan Secretary of State Jocelyn Benson talks about voting and the upcoming elections, September 24, 2020, in Detroit.
Critical decisions about how elections are administered in the United States mostly rest with partisan, elected officials at the state and local level—and they have a great deal of power. The secretaries of state and other state and local authorities who run elections can make it harder to vote, or they can make it easier. Whether they shrink the electorate or expand it could well be decisive this year.
The 2018 election for governor in Georgia showed how pivotal a role a secretary of state can have. The Democratic candidate, Stacey Abrams, not only was trying to break through historic barriers as the first female African American major-party gubernatorial nominee in any state; she also faced an opponent, Brian Kemp, who as Georgia’s secretary of state had purged more than a million voter registrations—with roughly half the cancellations occurring eight months into his run for governor. A month before the election, Kemp’s office held up 53,000 new voter registration applications, roughly the same number of votes that provided him a margin of victory.
In this country’s decentralized election system, every state has its own rules for elections, and its own rule makers. This system—or non-system—makes it harder to overcome local barriers to voting, but it can also enable local authorities to take the initiative to help more people to vote.
Consider Florida, a critical state this year as it has been before. Florida law requires counties to have early voting available for eight hours a day for eight days, but counties can elect to have up to 12 hours a day or voting for 14 days—which some Florida counties are doing, though the amount of additional time varies. Two of Florida’s largest counties, Broward and Palm Beach, have both expanded early voting to the maximum number of allowed days.
Florida has also had no-excuse vote-by-mail since 2002, and the state allows counties to begin processing ballots before Election Day. But there’s a hitch: Florida doesn’t recognize postmarks for its Election Day deadline. For voters to have their vote counted, their ballot must arrive by Election Day—not just be postmarked by Election Day, unless you’re voting from overseas.
According to Kirk Bailey, political director of the Florida ACLU, even with a lot of local control in state elections, Florida Secretary of State Laurel Lee, a Republican, has “plenty of authority” to nudge county supervisors toward more-inclusive elections, such as by encouraging counties to maximize early-voting days and hours, helping to pay postage for ballots and ballot requests, and sending out vote-by-mail request forms. Lee could even assess whether or not the deadline to return them could be adjusted, Bailey said, but the secretary’s office has done none of that. Lee’s office even delayed their application to the federal government for CARES Act funding, which prevented the disbursal of funds to county supervisors until early August.
“That’s a process in the state’s control and they’ve clearly delayed,” Bailey said. “Their inaction has created confusion and made it more difficult to implement whatever programs [supervisors] would want to do to make voting easier.”
Naila Awan, a senior counsel at Demos who specializes in the democratic process, points to examples of local leadership making democracy more inclusive. In Georgia, the Republican secretary of state decided against sending absentee ballot applications to voters for the general election, but DeKalb County—population 760,000—has taken on the expense itself for the first time in the county’s history. In Oakland County in Michigan, the state’s second-largest county, county officials have sent prepaid return envelopes with ballots.
In most states, the secretary of state is chiefly responsible for carrying out elections and enforcing elections rules. According to the National Conference of State Legislatures, the nation’s system means that “no state administers elections in exactly the same way as another state.” Currently, the majority of states elect a secretary of state as the chief elections official. Five states’ governors appoint the chief elections official, and in nine states a board or commission oversees elections. Seven states have a combination of a chief official and elections board.
Elections officials are organized in two national groups: the National Association of Secretaries of State, which includes 36 elected chief state elections officials and four appointed elections officials; and the National Association of Election Officials, which boasts more than 1,350 members, ranging from local officials such as county clerks and election supervisors to state elections directors and secretaries of state.
The Washington Post estimates that at least 80 percent of eligible voters will have access to a mail-in ballot this year, compared to just 25 percent of voters who used mailed ballots in 2018.
Most of the world’s major established democracies have nonpartisan, professional election administration. That chief elections officials are themselves elected in the United States is “very unusual,” said Avery Davis-Roberts, associate director of the Carter Center’s Democracy Program.
This year, elections authorities in this country must simultaneously overcome the challenges of the pandemic, while dealing with potential cybersecurity breaches, disinformation about voting, and a crisis of confidence in election integrity encouraged by repeated attacks on mail-in ballots by President Trump and the right-wing media.
Controversy now focuses on a few key issues: whether mail-in ballots will be counted if received after Election Day; the use and number of secure drop boxes for ballots; whether voters will have a right to contest a decision to discard their ballot if they made an error in submitting it, or if their signature is ruled not to match existing records; how sufficient numbers of poll workers and other needed personnel will be recruited; educating voters on pandemic-related changes to voting; and final certification of election results.
Some states, including Oregon, Washington, Colorado, Utah, and Hawaii, have well-established universal vote-by-mail systems. But this year, many states are moving to mass use of vote-by-mail for the first time. The Washington Post estimates that at least 80 percent of eligible voters will have access to a mail-in ballot this year, compared to just 25 percent of voters who used mailed ballots in 2018. Whether states will be able to count mail-in votes in a timely manner, especially if state law precludes them from starting the count before Election Day, poses a major challenge.
Concerns about potential delays in transmitting ballots by the Postal Service have increased interest in the use of drop-off boxes for ballots. Thirty-nine states and Washington, D.C., will use drop boxes this fall, but in Texas, Republican Gov. Greg Abbott has set a limit of one drop box per county, effectively making drop-off points inaccessible for many voters. Ohio Secretary of State Frank LaRose has refused to increase the number of drop boxes, leading the Ohio Democratic Party to file a complaint against the state. Currently, there’s only one drop box per county—even in counties with more than a million residents. After a court ruled the state could and should add more boxes, LaRose appealed the order.
Ohio also requires that voters’ signatures match on their application, their ballot, and their registration—a process that has been challenged nationwide for its tendency to disenfranchise voters. On July 31, the League of Women Voters along with the ACLU filed a lawsuit alleging that Ohio’s signature-matching system could lead to thousands of scrapped votes. In a press release about the suit, Freda Levenson, legal director of the ACLU of Ohio, called the matching process “incredibly subjective and fraught with error,” adding that voters don’t receive adequate opportunity to fix their “supposed mistakes.”
In North Carolina, where mail-in ballots are already being received, this process has already been shown to disenfranchise disproportionately more Black voters. Under current law, staff and managers of long-term care facilities are also not allowed to witness a resident’s ballot, which affects how the elderly can vote when family visits are restricted or not allowed. Eight states have similar witness signature laws.
Some states, such as Georgia, require poll workers to live in the county in which they are volunteering, making it harder to recruit enough poll workers.
There are more than 300 ongoing lawsuits around the country over how states are running their elections. In a key decision on Monday, the U.S. Supreme Court overruled a lower federal court and reinstated the witness signature requirement in South Carolina. The implications for other cases are not yet clear. An opinion by Justice Brett Kavanaugh, arguing against changes to elections laws by the courts close to Election Day, could be a basis at least for not intervening in states that have made voting more inclusive.
Educating voters about changes to their polling places, how to vote by mail, and even keeping them abreast of the latest court developments in a local elections battle, is crucial to expanding the electorate this year. In 2018, Michigan voters passed a far-reaching elections initiative, and since then, the state has been working to educate voters on their new rights. Secretary of State Jocelyn Benson says she is partnering with local officials to ensure that the state is in “the best possible position” to carry out vote-by-mail, voter registration on Election Day, and automatic voter registration—all aspects of the state’s new law. Combating disinformation about voting by mail—disseminated by the president himself—has been an ongoing challenge, she added.
Another challenge facing elections officials this year is recruiting enough poll workers—a job typically fulfilled by senior citizens who are now most vulnerable to COVID-19. In the Wisconsin primary election this year, a last-minute poll worker shortage reduced Milwaukee’s 180 polling places to just five. Ohio’s LaRose called that a “disaster that we need to avoid.” Some states, such as Georgia, require poll workers to live in the county in which they are volunteering, making it harder to recruit enough poll workers, says Davis-Roberts. She notes that there are lots of volunteers in Atlanta where the Carter Center is located, but the need is in rural counties where the law bars those volunteers from working.
Tech problems and cybersecurity are another worry. In Florida this week, the state announced it would extend its voter registration deadline when hundreds of thousands of people tried to register just before the deadline, causing the website to crash. Secretary of State Laurel Lee investigated the possibility that the crash was deliberate, concluding on Tuesday that the state had not found any evidence of an outside attack.
There are more than 300 ongoing lawsuits around the country over how states are running their elections.
Some chief elections officials were previously local elections officials and therefore have long experience administering elections. For example, Republican Kim Wyman, Washington’s secretary of state, has been working in election administration since 1995. Since the state introduced vote-by-mail in 1993, it is well equipped for voting in a pandemic.
Similarly, North Carolina’s Board of Elections director Karen Brinson Bell has worked in the state’s elections agency since 2000. “My perspective is often still grounded in what I knew I had to do at the county level,” Bell told the Prospect.
“The secretary of state, as the chief election officer, sets a standard and expectation that elections administration will be done in an impartial way, with an eye towards what’s best for every voter, regardless of how they vote,” said Michigan’s Benson.
That’s how it’s supposed to be. “Elections officials,” said Robert Brandon, president of the Fair Elections Center, “are trying to do a good job and they’re trying to make it safe from a health point of view. Some are more proactive than others and some have made decisions and some you can wonder what their motivations really are—to expand the franchise or restrict it in some way.”
