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VOL. 44 | NO. 17 | Friday, April 24, 2020

Mail-in ballots have costs in counting, reporting

By Kathy Carlson

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Tennessee’s August and November elections will be governed by a combination of state and federal law.

In general, states have authority to conduct elections, which in practice are handled county by county within parameters the states set, says Steven Mulroy, law professor in constitutional law, criminal law and election law at the University of Memphis.

Moreover, he says, the U.S. Constitution gives Congress authority over how the states run federal elections, both primaries and general elections. The August election includes primaries for the U.S. Senate seat currently held by Lamar Alexander and for all seats in the U.S. House of Representatives.

In the November election, voters will choose the president and members of Congress, half of Tennessee state senators, all of Tennessee’s state representatives and various other state and local offices.

The interplay of different laws can be complicated.

States and political parties have some discretion over how they hold elections. States can decide whether to hold closed or open primaries, for example, and state political parties can choose whether to hold caucuses or primary elections for federal offices, Mulroy says. But federal laws such as anti-discrimination laws also apply.

Before the Tennessee Legislature recessed this spring, it had considered and rejected a proposal to allow registered voters to vote absentee by mail if they had “a reasonable fear of exposure to a contagion that has caused the governor to declare a state of emergency.” Gov. Bill Lee had declared a state of emergency for the coronavirus pandemic in March.

Lawmakers also rejected a proposal by Sen. Jeff Yarbro, D-Nashville, that would have authorized county election commissioners to allow absentee balloting for any reason.

Mulroy says the Tennessee General Assembly – when and if it reconvenes in June – needs to revisit the notion of no-excuse absentee voting by mail. State lawmakers could decide to make the change apply only in this year’s extraordinary circumstances, given that coronavirus is a contagious, serious pandemic disease that has never been seen before.

State legislation could provide for absentee voting by mail for every voter who wants to, with election supersites for those – probably only a few people – who wanted to vote in person or who could not use paper ballots, he says.

Voters with absentee ballots could either mail them to election officials in a stamped, self-addressed envelope that was provided with their absentee ballot, or drop off the ballots at specified secure locations.

Having a physical paper trail of votes might increase confidence in the voting process, he says. “You can hack a computer but you can’t hack a human being.”

Mulroy also points to a bill in the U.S. Senate, sponsored by Sens. Amy Klobuchar, D-Minnesota, and Ron Wyden, D-Oregon, titled the Natural Disaster and Emergency Ballot Act of 2020.

It will “guarantee every voter a secure mail-in paper ballot and help states cover the cost of printing, self-sealing envelopes, ballot tracking and postage,” the senators said in a March 16 opinion piece in The Washington Post.

“Our legislation would also expand early voting to avoid lines where the virus could spread and help states recruit young poll workers so that older Americans who typically step up on Election Day can stay home.”

“That would be a good piece of legislation,” Mulroy says of the Klobuchar-Wyden bill.

Local election officials might need more scanning machines to ensure that an increased number of mail-in ballots can be counted quickly, he says. And laws might need to be changed to allow more time for absentee votes to be counted. Results still wouldn’t be reported until after polls closed on Election Day.

Even with additional scanners, it may be several days before election results could be announced.

“I’d rather get it right than get it fast,” Mulroy says. “I’m OK with waiting two or three days” for election results.

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