Republished from The Conversation

How state courts – not federal judges – could protect voting rights

Steven Mulroy, University of Memphis

A jaw-dropping deluge of election-related lawsuits is already working its way through the nation’s courts, but some lawyers are taking a different tack than usual: ignoring federal laws and instead focusing on state constitutions and state laws, as interpreted by state courts.

That could be a smart move: The U.S. Constitution
gives the states’ primary responsibility for regulating elections, including federal elections. Almost all the voting procedures at issue are matters of state law. And almost all state constitutions guarantee a right to vote.

Federal courts also handle voting rights cases. But in recent years, there has been an increasingly clear pattern of lower-level federal trial courts ruling to expand voting rights, only to see those rulings overturned by federal appeals judges, many of them appointed by President Donald Trump.

The research I conducted for my recent book, “Rethinking U.S. Election Law: Unskewing the System,” and my experience with a voting rights lawsuit in my home state of Tennessee, show that the state court path may be more effective at protecting voters’ rights – and a recent U.S. Supreme Court ruling hints that way as well.

A new dynamic in federal courts

During the civil rights era and for decades afterward, the federal courts were the guardians of voting rights, a refuge from states’ discrimination. In recent years, though, that has changed.

Now, voting rights cases in federal court face uncertainty. For example, in Texas this year, Republican Gov. Greg Abbott declared that each county – some of which had already set up 10 or more drop boxes for voters concerned with mail slowdowns to deposit their mail ballots in – could instead have only one drop box. This one-per-county limit did not allow exceptions for counties with large populations or areas to cover.

In response to a lawsuit brought by the League of Women Voters and other voting rights groups, a federal trial court found that Abbott’s limit was an unreasonable barrier to voting – but a three-judge appeals court panel, all Trump appointees, overturned the lower court and upheld Abbott’s limit.

The same dynamic shows up in recent cases brought by Democrats in swing states like Wisconsin and Ohio. The Wisconsin case involved an attempt to extend deadlines to return absentee ballots. The Ohio case involved an attempt to expand the number of mail ballot drop boxes. In both cases, early federal trial court wins for expanded voting rights were overturned on appeal.

This pattern worries those like me who think it should be easier to vote – not harder – and especially so during a pandemic.

Similar cases with different results

That’s why I got involved in a state court lawsuit in Tennessee, which was one of only a handful of states that did not expand eligibility for absentee voting at the beginning of the pandemic. States that did so said they wanted to make it easier – and safer – for people to cast their ballots in local, state and national elections, including presidential primaries that were slated to happen through the spring and summer of 2020.

In May 2020, I helped a bipartisan group of voters in Tennessee file a state lawsuit seeking a judge’s order that the state expand mail voting in time for the August primary election. Around the same time, several national civil rights organizations filed a federal lawsuit seeking a similar order.

Though the cases were based on similar principles and sought nearly identical outcomes, they proceeded very differently. The federal lawsuit was assigned to a Trump appointee and proceeded very slowly over many months. The slow pace prevented the case from expanding absentee voting generally, and the court rejected claims to make it easier to distribute absentee applications and fix problems with absentee ballots. But the judge did issue a ruling in September allowing many first-time voters to vote absentee.

By contrast, our state court case resulted in a ruling that all Tennessee voters could cast their ballots by mail for the August election – and the decision came down within 30 days of the suit being filed.

Because the two cases pursued distinct legal strategies, these outcomes did not conflict with each other.

A strategy that is spreading

When we filed our suit, we did not make any claims under the U.S. Constitution or federal law. We kept our focus only on state law and the right to vote under the Tennessee Constitution.

We thought our case was strong enough without invoking federal laws, and we knew that invoking federal law could allow the state, which we were suing, to shift the case into federal court. We feared – and the outcome of the parallel federal case confirmed – that the case would be less successful before a federal judge.

In Texas, voting rights advocates are pursuing this same strategy in another attempt to overturn Abbott’s restrictions on drop boxes, by using only provisions of the state constitution and laws. That way they may avoid ending up in federal court, where the appeals court already ruled in Abbott’s favor.

Judges’ politics may make a difference

State courts may be less difficult for voting rights cases than federal courts are at the moment. Most federal appeals courts are now dominated by Republican appointees. More than 25% of federal appellate judges were appointed by Trump, a group that is conservative even by Republican standards.

These Republican-appointed judges show a marked pattern of ruling against voting rights plaintiffs, a recent study shows.

Of course, Republican appointees not only control the federal system’s top court, but with the swearing-in of Amy Coney Barrett, the Supreme Court now has a lopsided 6-3 conservative majority for any post-election litigation.

By contrast, in some swing states, like Colorado, North Carolina and Pennsylvania, Democratic nominees enjoy a majority of the state supreme court. In other swing states, it may be more mixed, or tilted toward the GOP.

But even in those states, the judges are often elected, which may add another factor in a judge’s consideration. Public opinion may constrain judicial enthusiasm for decisions that could overturn the clear will of the voters. That contrasts sharply with federal judges, who have life tenure.

That popular opinion dynamic may have played a role in my Tennessee case. That was such a high-profile, politically charged hot potato that the Republican National Committee filed a brief opposing our case, even though Tennessee is a decidedly Republican state no matter how many people vote.

When our state trial court victory was appealed to the conservative-majority Tennessee Supreme Court, that court did trim back the scope of our win, but not by much. It allowed mail voting in November for anyone who has an underlying medical condition making them vulnerable to COVID-19, or who is a caretaker or co-resident of such a person. Together, those groups cover more than two-thirds of Tennessee voters.

Ending up in federal court anyway?

Of course, no strategy is foolproof. Even if advocates carefully focus on making claims about state laws in state courts, there is always a chance the case could end up in federal court anyway. The other side could complain that the state court’s ruling violates federal law or the U.S. Constitution.

That’s what happened in Bush v. Gore in 2000, when the U.S. Supreme Court ruled the Florida Supreme Court’s order for a vote recount violated the Constitution. That case ended Florida’s recount, effectively handing the presidency to George W. Bush.

The Pennsylvania GOP tried a similar move in October 2020, asking the U.S. Supreme Court to review a Pennsylvania Supreme Court decision extending mail voting deadlines. The federal justices declined to take the case by a split vote of 4-4, which lets the lower court ruling stand. But new Justice Barrett could conceivably break the tie and bring the state case under federal review. Perhaps sensing this opportunity, the Pennsylvania Republicans are trying again.

And on Oct. 26, the U.S. Supreme Court blocked the extension of mail-in voting deadlines in Wisconsin. Chief Justice John Roberts explained that the difference between the two cases was that the Wisconsin case came through a federal court, while the Pennsylvania suit came from state courts – which is where he said voting rights issues should be decided.

Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of Memphis

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How tech firms have tried to stop disinformation and voter intimidation – and come up short

Scott Shackelford, Indiana University

Neither disinformation nor voter intimidation is anything new. But tools developed by leading tech companies including Twitter, Facebook and Google now allow these tactics to scale up dramatically.

As a scholar of cybersecurity and election security, I have argued that these firms must do more to rein in disinformation, digital repression and voter suppression on their platforms, including by treating these issues as a matter of corporate social responsibility.

Earlier this fall, Twitter announced new measures to tackle disinformation, including false claims about the risks of voting by mail. Facebook has likewise vowed to crack down on disinformation and voter intimidation on its platform, including by removing posts that encourage people to monitor polling places.

Google has dropped the Proud Boys domain that Iran allegedly used to send messages to some 25,000 registered Democrats that threatened them if they did not change parties and vote for Trump.

But such self-regulation, while helpful, can go only so far. The time has come for the U.S. to learn from the experiences of other nations and hold tech firms accountable for ensuring that their platforms are not misused to undermine the country’s democratic foundations.

Voter intimidation

On Oct. 20, registered Democrats in Florida, a crucial swing state, and Alaska began receiving emails purportedly from the far-right group Proud Boys. The messages were filled with threats up to and including violent reprisals if the receiver did not vote for President Trump and change their party affiliation to Republican.

Less than 24 hours later, on Oct. 21, U.S. Director of National Intelligence John Ratcliffe and FBI Director Christopher Wray gave a briefing in which they publicly attributed this attempt at voter intimidation to Iran. This verdict was later corroborated by Google, which has also claimed that more than 90% of these messages were blocked by spam filters.

The rapid timing of the attribution was reportedly the result of the foreign nature of the threat and the fact that it was coming so close to Election Day. But it is important to note that this is just the latest example of such voter intimidation. Other recent incidents include a robo-call scheme targeting largely African American cities such as Detroit and Cleveland.

It remains unclear how many of these messages actually reached voters and how in turn these threats changed voter behavior. There is some evidence that such tactics can backfire and lead to higher turnout rates in the targeted population.

Disinformation on social media

Effective disinformation campaigns typically have three components:

• A state-sponsored news outlet to originate the fabrication
• Alternative media sources willing to spread the disinformation without adequately checking the underlying facts
• Witting or unwitting “agents of influence”: that is, people to advance the story in other outlets

The advent of cyberspace has put the disinformation process into overdrive, both speeding the viral spread of stories across national boundaries and platforms with ease and causing a proliferation in the types of traditional and social media willing to run with fake stories.

To date, the major social media firms have taken a largely piecemeal and fractured approach to managing this complex issue. Twitter announced a ban on political ads during the 2020 U.S. election season, in part over concerns about enabling the spread of misinformation. Facebook opted for a more limited ban on new political ads one week before the election.

The U.S. has no equivalent of the French law barring any influencing speech on the day before an election.

Effects and constraints

The impacts of these efforts have been muted, in part due to the prevalence of social bots that spread low-credibility information virally across these platforms. No comprehensive data exists on the total amount of disinformation or how it is affecting users.

Some recent studies do shed light, though. For example, one 2019 study found that a very small number of Twitter users accounted for the vast majority of exposure to disinformation.

Tech platforms are constrained from doing more by several forces. These include fear of perceived political bias and a strong belief among many, including Mark Zuckerberg, in a robust interpretation of free speech. A related concern of the platform companies is that the more they’re perceived as media gatekeepers, the more likely they will be to face new regulation.

The platform companies are also limited by the technologies and procedures they use to combat disinformation and voter intimidation. For example, Facebook staff reportedly had to manually intervene to limit the spread of a New York Post article about Hunter Biden’s laptop computer that could be part of a disinformation campaign. This highlights how the platform companies are playing catch-up in countering disinformation and need to devote more resources to the effort.

Regulatory options

There is a growing bipartisan consensus that more must be done to rein in social media excesses and to better manage the dual issues of voter intimidation and disinformation. In recent weeks, we have already seen the U.S. Department of Justice open a new antitrust case against Google, which, although it is unrelated to disinformation, can be understood as part of a larger campaign to regulate these behemoths.

Another tool at the U.S. government’s disposal is revising, or even revoking, Section 230 of the 1990s-era Communications Decency Act. This law was designed to protect tech firms as they developed from liability for the content that users post to their sites. Many, including former Vice President Joe Biden, argue that it has outlived its usefulness.

Another option to consider is learning from the EU’s approach. In 2018, the European Commission was successful in getting tech firms to adopt the “Code of Practice on Disinformation,” which committed these companies to boost “transparency around political and issue-based advertising.” However, these measures to fight disinformation, and the related EU’s Rapid Alert System, have so far not been able to stem the tide of these threats.

Instead, there are growing calls to pass a host of reforms to ensure that the platforms publicize accurate information, protect sources of accurate information through enhanced cybersecurity requirements and monitor disinformation more effectively. Tech firms in particular could be doing more to make it easier to report disinformation, contact users who have interacted with such content with a warning and take down false information about voting, as Facebook and Twitter have begun to do.

Such steps are just a beginning. Everyone has a role in making democracy harder to hack, but the tech platforms that have done so much to contribute to this problem have an outsized duty to address it.

Scott Shackelford, Associate Professor of Business Law and Ethics; Executive Director, Ostrom Workshop; Cybersecurity Program Chair, IU-Bloomington, Indiana University

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What it’s like to lose a presidential election

Chris Lamb, IUPUI

The American public may not find out who wins the presidential election on Nov. 3 or Nov. 4 or even Nov. 5. But, at some point, we will learn whether Republican Donald Trump is elected to a second term or if Democrat Joe Biden will be the next president.

For the winner of the election, the moment of victory brings unbridled joy and acclamation, applause, laughter, hugs and champagne to celebrate the biggest prize in politics.

This isn’t so for the loser, who must ultimately accept the responsibility for the defeat.

In my book, “The Art of the Political Putdown,” I tell the story of Thomas Dewey, the Republican presidential candidate in 1948, who was heavily favored to win the election – only to lose to Harry S. Truman, the incumbent.

On election night, according to one story, Dewey, the governor of New York, asked his wife, “How will it feel to sleep with the president of the United States?”

“A high honor,” his wife replied, “and quite frankly, darling, I’m looking forward to it.”

But Truman won the election. The next day at breakfast, as the story goes, Dewey’s wife said, “Tell me, Tom, am I going to the White House or is Harry coming here tonight?”

A disappointing letdown

Losing the presidency is a crushing defeat. The incalculable hours of giving speeches, campaigning and fundraising came to naught. The candidate feels like they have disappointed the millions of people who believed in them, who contributed to the campaign, who voted for them and who thought they were going to win.

The pain associated with losing the presidential election remains for a long time. A dozen years after George McGovern lost the 1972 presidential election in a landslide to Richard Nixon, he was asked how long it had taken for him to recover. “I’ll let you know when I get there,” McGovern said.

After losing the 2008 presidential election, John McCain said he slept like a baby: “Sleep two hours, wake up and cry,” he said, adding, “sleep two hours, wake up and cry.”

In 2016, Democratic candidate Hillary Clinton woke up on Election Day ahead in most of the polls and thought she would become the first woman president. By the time the day was over, those hopes had faded, and by early the next morning, when she called her opponent Donald Trump to concede, those hopes had disappeared entirely.

“This is not the outcome we wanted or we worked so hard for,” Clinton told her supporters. “I know how disappointed you feel because I feel it, too … This is painful, and it will be for a long time.”

Concessions are difficult

When a person has committed so much to running for the president for so long, it’s not easy to let go. In the early morning hours of election night 2000, then-Vice President Al Gore conceded in a call to his Republican opponent, George W. Bush, then retracted the concession in another call when the results in the decisive state of Florida appeared uncertain. Thirty-six days passed before Bush’s victory was confirmed by the U.S. Supreme Court.

In her 2017 book, entitled “What Happened,” the title itself a statement of disbelief, Hillary Clinton remembered calling Donald Trump to concede the election. She said she offered to help him in any way she could. “It was all perfectly nice and weirdly ordinary, like calling a neighbor to say you can’t make it to his barbecue,” she wrote. “It was mercifully brief … I was numb. It was all so shocking.”

The 1960 presidential election between Democrat John F. Kennedy and Richard M. Nixon, the Republican vice president, remains one of the closest in history. Nixon said that he was advised by President Dwight Eisenhower to challenge the results because of cheating by the Democrats but refused, he said, because it would cause a “constitutional crisis” and “tear the country apart.” This, he added, would result in him being called a “sore loser” and jeopardize any chance of him running for president again.

When Nixon ran for the presidency in 1968, he was elected and then reelected in 1972, before resigning in disgrace in 1974. Nixon was the last person who won his party’s nomination after previously losing a presidential election.

After the loss

But if there’s little hope of a fresh attempt at the presidency, losing candidates have found second acts in American politics.

President Jimmy Carter, who was defeated by Ronald Reagan when he sought reelection in 1980, became an international human rights activist and won the Nobel Peace Prize in 2002. Gore became an environmentalist and shared the 2007 Nobel Peace Prize and a 2007 Academy Award for best documentary for a pioneering examination of climate change.

John Kerry, who lost to George W. Bush in 2004, became secretary of state in the Barack Obama administration. John McCain, who lost to Obama in 2008, stayed in the U.S. Senate. Mitt Romney, who lost to Obama in 2012, now serves in the U.S. Senate.

The transfer of power

Losing is hard, but losing as the incumbent, as Carter and George H.W. Bush did, is probably harder. But Carter and Bush understood the importance of the peaceful transition of power.

President Donald Trump repeatedly has cast doubt on whether he will accept the results of the election and peacefully hand over power if he loses to Biden. This could well result in the constitutional crisis to which Nixon referred.

In early 2020, when the Democratic primaries were still going on, Trump again expressed his unwillingness to vacate the White House – which drew a retort from Pete Buttigieg, who ultimately lost the Democratic nomination to Biden. Buttigieg said he had an idea for handling Trump, joking “If he won’t leave, I guess if he’s willing to do chores, we can work something out.”

Chris Lamb, Professor of Journalism, IUPUI

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Election 2020: 89 articles to teach you about how American elections really work

Catesby Holmes, The Conversation; Jeff Inglis, The Conversation, and Naomi Schalit, The Conversation

Editors’ note: In a world transformed by a pandemic, few of the fundamentals in Americans’ lives – schools, jobs, even how to shop for groceries – have remained the same. The same is true with the election, where the most basic of the institution’s elements – how, where and when to vote, among them – have changed.

When The Conversation US’s politics editors met to figure out how to provide readers with coverage that would be useful and informative, the approach was clear: a civics lesson. Over the course of roughly 100 articles, our scholars have explained how the U.S. election system works, retold the history of how it got that way and examined what effects and significance those mechanisms have for the nation today.

Here, our team has collected all of these articles, divided thematically, from the very beginning of campaigning through what happens after Election Day itself.

Campaigning

Basic elements of political campaigning

• The two-party system is here to stay
• Civility in politics is harder than you think
• George Washington was silent, but Trump tweets regularly – running for president has changed over the years
• The clothes make the candidate: The sartorial politics of this year’s key Senate races
• Why do people believe con artists?
• Angry Americans: How political rage helps campaigns but hurts democracy

Campaigning in a pandemic

• Presidential campaigns take flight in the age of the coronavirus
  
• Amid pandemic, campaigning turns to the internet
• From recording videos in a closet to Zoom meditating, 2020’s political campaigns adjust to the pandemic

Campaign tactics

• Why you’re getting so many political text messages right now
• What’s the best way to get out the vote in a pandemic?
• Trump’s law-and-order campaign relies on a historic American tradition of racist and anti-immigrant politics
• Trump and Biden ads on Facebook and Instagram focus on rallying the base

Political conventions

• Democratic, Republican parties both play favorites when allotting convention delegates to states
• Political conventions today are for partying and pageantry, not picking nominees
• Pandemic alters political conventions – which have always changed with the times
• What are political parties’ platforms – and do they matter?

Money in politics

• Election 2020 sees record $11 billion in campaign spending, mostly from a handful of super-rich donors
• Money talks: Big business, political strategy and corporate involvement in US state politics
• When presidential campaigns end, what happens to the leftover money?

Candidates’ debates

• Think presidential debates are dull? Thank 1950s TV game shows
• How to make presidential debates serve voters, not candidates
• Lessons on wrangling candidates from the masterful moderator of presidential debates, Jim Lehrer
• Don’t underestimate the power of the putdown in a presidential debate
• Dominance or democracy? Authoritarian white masculinity as Trump and Pence’s political debate strategy
• VP debates are often forgettable – but Dan Quayle never recovered from his 1988 debate mistake

Media and public perception

• Political bias in media doesn’t threaten democracy – other, less visible biases do
• Watch more TV to understand the backlash against the women in the running for vice president
• The candidate you like is the one you think is most electable
• Why is it so hard for atheists to get voted in to Congress?

Polling

• When noted journalists bashed political polls as nothing more than ‘a fragmentary snapshot’ of a moment in time
• Epic miscalls and landslides unforeseen: The exceptional catalog of polling failure
• Political forecast models aren’t necessarily more accurate than polls – or the weather

Vice presidential and Cabinet picks

• For Biden, naming Cabinet before election would be a big risk
• Don’t expect Biden’s pick of Kamala Harris for VP to make or break the 2020 election
• VP pick Kamala Harris stands on many women’s shoulders, especially Bella Abzug’s
• Before Kamala Harris became Biden’s running mate, Shirley Chisholm and other Black women aimed for the White House

International perspectives

• Russian media may be joining China and Iran in turning on Trump
• What could replace the Electoral College?
  
• What US election officials could learn from Australia about boosting voter turnout

The process of voting

History of voting

• The right to vote is not in the Constitution
• There’s nothing unusual about early voting – it’s been done since the founding of the republic
• 1864 elections went on during the Civil War – even though Lincoln thought it would be a disaster for himself and the Republican Party
• A summer of protest, unemployment and presidential politics – welcome to 1932

Voter suppression

• Closing polling places is the 21st century’s version of a poll tax
• Why the Supreme Court made Wisconsin vote during the coronavirus crisis
• Trump’s encouragement of GOP poll watchers echoes an old tactic of voter intimidation
• Georgia’s election disaster shows how bad voting in 2020 can be
• It takes a long time to vote
• How sexist abuse of women in Congress amounts to political violence – and undermines American democracy

Many voters face obstacles

• Citizenship delays imperil voting for hundreds of thousands of immigrants in the 2020 election
• As few as 1 in 10 homeless people vote in elections – here’s why

Specific voting groups and blocs

• With Kamala Harris, Americans yet again have trouble understanding what multiracial means
• Kamala Harris represents an opportunity for coalition building between Blacks and Asian Americans
• Asian Americans’ political preferences have flipped from red to blue
• Want the youth vote? Some college students are still up for grabs in November
• How to reach young voters when they’re stuck at home
• Will German Americans again put Donald Trump over the top in the presidential election?
• Indian Americans can be an influential voting bloc – despite their small numbers
• With Harris pick, Biden reaches out to young Black Americans

How to vote

• Why there is no ethical reason not to vote (unless you come down with COVID-19 on Election Day)
• Iowa caucuses did one thing right: Require paper ballots
• How to make sure your vote counts in November

Voting in person

• Voting while God is watching – does having churches as polling stations sway the ballot?
• Poll workers on Election Day will be younger – and probably more diverse – due to COVID-19
• 19th-century political parties kidnapped reluctant voters and printed their own ballots – and that’s why we’ve got laws regulating behavior at polling places

Voting by mail

• Timing, signatures and huge demand make mail-in voting difficult
• Mail-in voting’s potential problems only begin at the post office – an underfunded, underprepared decentralized system could be trouble
  
• Some states more ready for mail-in voting than others
• 6 ways mail-in ballots are protected from fraud
• Research on voting by mail says it’s safe – from fraud and disease
• Mail-in voting lessons from Oregon, the state with the longest history of voting by mail
• Mail-in voting does not cause fraud, but judges are buying the GOP’s argument that it does
• Voting by mail is convenient, but not always secret
• How to track your mail-in ballot

Aftermath

• How might the campaign’s endgame be disrupted? Here are five scenarios, drawn from the history of election polling

Electoral College

• Electoral College benefits whiter states, study shows
• The Electoral College is surprisingly vulnerable to popular vote changes
• Supreme Court reforms, strengthens Electoral College

Election integrity

• ‘Stolen’ elections open wounds that may never heal
• If Trump refuses to accept defeat in November, the republic will survive intact, as it has 5 out of 6 times in the past
• Judges used to stay out of election disputes, but this year lawsuits could well decide the presidency

Potential for violence

• When politicians use hate speech, political violence increases
• Election violence in November? Here’s what the research says

Who decides the outcome?

• How Congress could decide the 2020 election
• The case of Biden versus Trump – or how a judge could decide the presidential election
• Could a few state legislatures choose the next president?
• Who formally declares the winner of the US presidential election?
  

How it all ends

• The president’s term ends at noon on Jan. 20

Catesby Holmes, International Editor and Politics Editor, The Conversation; Jeff Inglis, Politics + Society Editor, The Conversation, and Naomi Schalit, Senior Editor, Politics + Society, The Conversation

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In two political battlegrounds, thousands of mail-in ballots are on the verge of being rejected

Michael Herron, Dartmouth College and Daniel A. Smith, University of Florida

Tens of millions of Americans have already cast their ballots for the 2020 election by mail, building on a historic shift in voting methods that started with primary elections held during the COVID-19 pandemic.

Mail-in ballots, however, aren’t automatically accepted as in-person ballots are. Rather, they can be rejected if they have signature defects on their return envelopes. Unless cured by voters – which means that voters fix the signature errors on them – these submitted ballots will be rejected.

Thanks to ongoing reporting of voter turnout in two battleground states, Florida and North Carolina, we can identify the number of mail-in ballots at risk of being rejected. So far, we can tell that there are thousands of ballots flagged for rejection in these two states. In addition, racial minorities and Democrats are disproportionately more likely to have cast mail ballots this election that face rejection.

The signature issue with mail ballots

Above, we use the word “risk” when describing ballots in Florida and North Carolina that have been flagged for rejection. While these ballots have signature defects, they have not yet been formally rejected.

Not all states have the same requirements for mail-in voting, but ballots usually face rejection if they’re missing a voter’s signature. Another source of defects is an ostensibly mismatched signature. This happens when an elections official concludes that a voter’s signature on a return envelope doesn’t match the voter’s signature on file.

Some states, like North Carolina, require witness signatures on ballot return envelopes, with the lack of such a signature considered a defect.

Enough ballots face rejection to sway an election

Our counts of mail ballots facing rejection in Florida and North Carolina are conservative. When calculating them using official data, we assume that any inconsistencies we find in the data are resolved in favor of ballot acceptance.

That said, here is what we know as of Oct. 22.

In Florida, 3,210,873 voters have cast mail ballots, and of these, 15,003 ballots face rejection, corresponding to a potential ballot rejection rate of 0.47%. This rate is not an estimate. It is based on counts drawn from official statewide data.

These thousands of mail ballots currently in limbo can make a difference. Consider the 2018 midterm election. In his successful United States Senate bid in this contest, Republican Rick Scott beat incumbent Democrat Bill Nelson by only 10,033 votes.

Over 2 million Floridians have yet to return the mail ballots sent to them by county election officials, so the number of mail ballots subject to rejection in Florida could grow well beyond 15,000.

In North Carolina, an even greater percentage of mail ballots face rejection. In that state, 8,228 of 701,425 mail ballots fall into this category, yielding a potential rejection rate of 1.2%.

As in Florida, North Carolina’s elections can be extremely close. In the state’s 2016 gubernatorial race, a mere 10,277 votes out of roughly 4.6 million cast separated the winner, Democrat Roy Cooper, from incumbent Republican Pat McCrory. The number of ballots at risk in North Carolina – 8,228 – remains smaller than this margin but could grow as more ballots are returned.

Partisan and race-based ballot rejection rates

The risks of mail ballot rejection are not spread uniformly across voters, and rejected mail ballots are not politically neutral.

We can see from our Florida and North Carolina election data that registered Democrats have greater rejection rates than Republicans. The partisan differences in potential ballot rejection rates – Democratic rate minus Republican rate – are approximately 0.07% and 0.16% in Florida and in North Carolina, respectively.

In addition, Democrats have expressed a greater willingness to vote by mail than Republicans – though this might be changing. This will compound any biases caused by differing ballot rejection rates across Democratic and Republican voters.

Official election data in Florida and North Carolina also reveal a clear racial pattern among mail ballots facing rejection: Black and Hispanic voters are much more likely to have their ballots flagged for missing signatures or other discrepancies than are white voters.

In Florida, ballots cast by Hispanic voters face a rejection risk 2.6 times that of white voters. In North Carolina, where the two most common racial groups are Black and white, the risk of ballot rejection for Black voters is three times that of white voters. White voters thus have lower ballot rejection rates than minority voters, who tend to support Democratic candidates over Republican ones.

Ballots can still be ‘cured’

In both Florida and North Carolina, voters who have submitted mail ballots with signature defects can still cure them.

Florida voters have the opportunity to fix their mail ballots through Thursday, Nov. 5. This can be done via affidavit. Details about ballot curing in North Carolina were until recently tied up in court. But voters in the state can now, in some cases, fix ballots with defects. However, ballots in North Carolina missing witness signatures cannot be cured, and voters in the state who cast these types of ballots must request new ballots if they want their votes to count.

Curing a ballot with a signature defect requires knowing that it is facing rejection. But not all states send out notices informing voters of ballot defects.

In some states, voters who cast mail-in ballots can check on the status of their ballots with local officials or using web resources provided by the secretary of state, which voters can do in New Mexico and Ohio.

However, other states, such as Maine and New Hampshire, don’t have laws mandating that voters get the opportunity to cure mail ballots of deficiencies. For this election, though, officials in these two New England states have developed procedures to allow voters to fix ballots with defects.

Given the surge of mail-in ballots in this election cycle, there’s likely to be confusion over rejected ballots and cures. In the future, it’ll be important for states to provide voters with transparent processes for fixing defective ballots so they can ensure they’ll be able to exercise the right to vote.

Michael Herron, William Clinton Story Remsen ’43 Professor of Government, Dartmouth College and Daniel A. Smith, Professor and Chair of Political Science, University of Florida

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