The pictures of long lines of Wisconsin voters wearing facemasks to avoid coronavirus transmission as they waited to cast in-person ballots may become the image that finally pushes the nation toward vote-by-mail. Or maybe not.
Angry voters expressed ire at being forced to risk their health to vote, as more than 1 million Wisconsin voters requested and mailed in “absentee” ballots. Many of the voters standing in line complained they were forced to show up at the polls because they never received the absentee ballots they requested. Elections data shows almost 1.3 million Wisconsin registered voters requested absentee ballots.
Turnout in the 2016 Wisconsin primary totaled 2.1 million voters or 66 percent of registered voters. To equal that turnout this year would have meant 1.1 million voters would have had to vote in person. That’s unlikely since Milwaukee, the largest city in the state, only had five polling places. At 8 pm when polls were scheduled to close, election officials said there were still long lines of people waiting to vote.
Pending legislation in Congress, introduced by Oregon Senator Ron Wyden and Minnesota Senator Amy Klobuchar, would ensure voters in all states are eligible for mail-in voting for the November general election. The Natural Disaster and Emergency Ballot Act was introduced as several states postponed primary elections because of the coronavirus outbreak and turnout dropped markedly in in-person voting primaries in Florida, Arizona and Illinois.
In a statement, Wyden said, “If Ohio, Louisiana, Georgia, Maryland and Kentucky had vote by mail on the books years ago, they wouldn’t have had to postpone their elections. This bill will give our country the highest chance of avoiding delayed elections and ensure Americans can exercise their Constitutional rights. No one should have to put their health at risk to vote.”
Massachusetts Senator Elizabeth Warren has offered an even bolder plan. She calls for $4 billion in new funding for elections, 30 days of required early voting and a mail-in ballot sent to every US registered voter. “The chaos and the attempt to suppress the vote in Wisconsin should be a wake-up call for the United States Congress,” Warren said in an interview with NPR. “The pandemic has exposed how vulnerable our voting system is. We need to act immediately.”
While leading Democrats have endorsed vote-by-mail, Republicans have remained leery. Illinois Congressman Rodney Davis, the ranking Republican on the House Administration Committee, said, “We don’t know how long it would take the rest of the country to be able to successfully implement these programs. We should not be pushing through unnecessary policies in a time of emergency.”
President Trump has offered a blunter reason to reject vote-by-mail. Despite casting a mail-in ballot himself in the recent Florida primary, Trump described vote-by-mail as “corrupt,” explaining there could be “thousands of people sitting in somebody’s living room signing ballots.” Trump also has admitted that vote-by-mail could hurt GOP chances to win election – “you’d never have a Republican elected in this country again” – presumably by boosting voter turnout.
Election law experts, such as Stanford’s Nate Persily, note that the people most likely to avoid standing in line to vote are older voters, who tend to be more conservative and Republican. “They might be the ones most likely to vote by mail,” Persily said. “So it’s not clear who wins as a result of moving to these types of measures.”
Concerns have been raised that increased absentee voting would lead to more disputes and litigation over election outcomes. While that hasn’t been the experience of Oregon, Washington, Colorado and Hawaii that already have exclusively mail-in elections, there has been a pattern of uncounted absentee ballots in a number of states. Disputes over absentee ballots occurred in the 2018 mid-term elections in Florida and North Carolina. The North Carolina controversy led to a re-vote for a congressional seat.
Some disputes could be serious enough to reach high courts, which have increasingly shown signs of political polarization on election issues. “If the current Supreme Court were to divide 5-4 in awarding the  election to President Donald Trump, Democrats would see the presidency as well as the court as illegitimately stolen from them,” speculates Edward Foley, an Ohio State University law professor.
With Senate Majority Leader Mitch McConnell unlikely to bring the Klobuchar-Wyden legislation to the floor for a vote, mail-in elections will likely become a Democratic priority for inclusion in the next federal emergency relief measure, which is already being negotiated quietly behind closed doors, or additional relief measures if the pandemic refuses to abate and continues in the summer and fall.