by Phill Kline
The way we cast our ballots matters. Some methods are not secure. Some methods are overly complicated. Some methods are not transparent. Any of these shortcomings is enough to undermine public confidence in the outcomes of our elections – and thus undermine our democracy itself.
Voting by mail suffers from every one of those shortcomings. In 2020, the avalanche of nonprofit monies used to turn urban election offices into partisan turnout centers identified and exacerbated these flaws and the impact of legal violations.
“Absentee ballots remain the largest source of potential voter fraud,” concluded a 2005 report from a bipartisan commission co-chaired by former President Jimmy Carter and former Secretary of State James Baker.
The vulnerabilities that the Carter-Baker Commission identified remain pertinent today – especially in the aftermath of the 2020 election, which saw absentee and mail-in voting proliferate to an unprecedented degree.
“Blank ballots mailed to the wrong address or to large residential buildings might get intercepted,” the Commission warned in 2005. Fifteen years later, officials in numerous states weakened rules governing absentee ballots without legislative approval.
“Citizens who vote at home, at nursing homes, at the workplace, or in church are more susceptible to pressure, overt and subtle, or to intimidation,” the Carter-Baker Commission observed. That’s exactly what happened in Wisconsin in 2020, when the state’s Elections Commission suspended legal requirements for bipartisan Special Voting Deputies to oversee absentee voting in the state’s nursing homes. As a result, some of the state’s most vulnerable residents – including some with severe memory issues or cognitive decline, many of whom had not voted in decades prior to 2020 – say they were subjected to intimidation and coercion.
“Vote buying schemes are far more difficult to detect when citizens vote by mail,” the Carter-Baker Commission adds, recommending that states prohibit third-party organizations, activists, parties, and candidates from handling absentee ballots. In 2020, however, states across the country embraced absentee ballot drop boxes, making it even easier for partisan activists to engage in “ballot harvesting” by collecting absentee ballots of unknown legitimacy and depositing them in privately funded drop boxes, either under cover of darkness or while masking their faces.
The Carter-Baker Commission urged states to take steps to ensure that absentee ballots “are kept secure until they are opened and counted.” Drop boxes – which I usually refer to as “Zuckerboxes” in recognition of the man who funded so many of them in 2020 – are directly contrary to this goal. While it is theoretically possible to maintain chain of custody while using drop boxes, the reality is that in many cases chain of custody records were not kept and best security practices were not followed.
Moreover, the 2020 election saw postal facilities turned into de facto vote processing centers. Despite the central role that U.S. Postal Service employees, contractors, and facilities played in the election – and the fact that the American Postal Workers Union endorsed Joe Biden – there was shockingly little oversight of the USPS. Bipartisan election observers were kicked out or relegated to the penalty box of arena-sized official vote counting centers, and were never even granted hypothetical access to the USPS facilities that processed tens of millions of mail-in ballots.
Is it any wonder that millions of Americans have concerns about the integrity of the 2020 elections? The left blames Donald Trump for this, accusing him of stoking “baseless” fears about mail-in balloting, but in truth these concerns are not baseless, and they are not unique to Trump. Jimmy Carter and James Baker were expressing the same concerns back when Trump was hosting “The Apprentice.”
Widespread mail-in voting wasn’t the only vulnerability in the 2020 election. Concerns about the reliability of voting machines have been growing for decades, ever since their widespread adoption in the wake of the 2000 election.
The Carter-Baker Commission called for an auditable backup on paper and independent testing of voting machines under supervision by the federal Election Assistance Commission. Instead, post-election audits have been vilified by the left and the mainstream media, and voting machine vendors have jealously insisted that inspections of their products be conducted exclusively by the EAC, which has a notoriously cozy relationship with the voting machine vendors.
The only way to restore public confidence in our elections is for state legislatures to take a hard look at the way elections are conducted and decide whether it conforms to basic common sense. If the answer is no, then they need to overhaul their election laws.
Paper ballots, cast in person and counted by hand, are the gold standard. They are accountable, transparent, and inclusive – the three conditions that the U.S. Agency for International Development applies when it evaluates the fairness of foreign elections. Reasonable accommodations can be made for service members stationed overseas, voters with disabilities, and others who legitimately require an alternative method of casting their ballot. A desire to avoid waiting in line is not a hardship and should not be treated as such.
We know how to conduct free and fair elections in a manner that inspires widespread confidence in the results. It’s time we go back to doing it.
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Phill Kline is the former Kansas attorney general. He is now a law school professor and director of The Amistad Project.