In the recent presidential election, Wisconsin had a high turnout, 72.3 percent, of which Joseph Biden took 49.6 percent — 250,000 more votes than Hillary Clinton in 2016 — and enough to win. For a candidate whose rallies virtually no one attended, and whose political party, in response to recent rioting and looting, was passive, that's pretty good. Or is it?
The answer to that may depend on the kind of ballots that were cast — whether they were cast in person or through the mail. Frank Miele describes the process of the first:
[Y]ou first make an active choice to vote, confirm your identity as a registered voter to a poll worker, then mark your ballot privately but in the presence of other people, and finally hand it off to a poll worker who scans it directly into a vote-counting machine while you watch. In other words, you establish your legal right to vote and have a secure chain of custody of your ballot until it is scanned, which you yourself [and you alone] participate in.
Adam Liptak of the N.Y. Times reports on a portion of mail-in voting:
The [election] board tossed out some ballots because they arrived without the signature required on the outside of the return envelope. It rejected one that said "see inside" where the signature should have been. And it debated what to do with ballots in which the signature on the envelope did not quite match the one in the county's files.
"This 'r' is not like that 'r,'" Judge Augustus D. Aikens Jr. said, suggesting that a ballot should be rejected.
Ion Sancho, the elections supervisor here, disagreed. "This 'k' is like that 'k,' " he replied, and he persuaded his colleagues to count the vote.
As can be seen, this is a very subjective, uncertain process — a far cry from the one described by Miele. But, at least in the example, which was conducted in the presence of a reporter, and in which the officials were perhaps of different parties, the officials appeared to be conscientiously trying to make the correct determination.
But what about determinations made not in the presence of a reporter, or with officials of the same party? To this, Josh Harrow writes:
[It is] far too easy to imagine one-party Democratic machine jurisdictions padding the vote tally for their candidate by mass non-disqualification of mail-in ballots that would otherwise merit closer scrutiny.
Where would such ballots come from? According to J. Christian Adams and Hans Von Spakovsky, it is from the over-inclusion of names in the voting rolls. They elaborate:
There are serious problems with the accuracy of every single state's voter rolls, some far worse than others.
People are registered multiple times. In some states, the dead remain on the rolls as active registrants for years, sometimes decades. Voter rolls are missing basic information like apartment numbers, birthdates and sometimes even full names.
There are other problems as well. Suffice it to say, the opportunity for fraud with mail-in votes is clearly there. If that opportunity has been taken, can we, through a recount, prove it? The answer is no. Once the mail-in ballots are accepted, they are thrown in with the in-person ballots. Even if officials find out later that a dead person sent in a ballot, we don't know how that dead person voted.
So if we find evidence that something in the recent election suggests that there was mail-in voter fraud (and there is such evidence), there's nothing we can do to prove that. Ever.
Although we cannot have a recount that would discover and erase fraudulent mail-in votes, and potentially throw the state electors to Trump, there's one thing that we can do. We can have a re-vote — one that includes early voting and (restricted) absentee voting, protocols to protect against COVID-19, but not mail-in voting. This would not award anything to anyone; it simply would provide a far more trustworthy vote.
If the results of such a re-vote are dramatically different, and in Pres. Trump's favor, it would not necessarily prove that, in the prior election, there had been fraud. In the interval, some voters may have changed their minds, or some of those who mailed their vote might not want to take the trouble to vote in person. The difference would be this — that, as much as is possible, we can trust the results of an in-person vote, as described by Miele; we cannot trust the result of mail-in voting.
Liptak, of the N.Y. Times, relying on election officials, writes:
[Mail-in voting fraud] is vastly more prevalent than ... in-person voting fraud[.] ...
Voting by mail is now common enough and problematic enough that election experts say there have been multiple elections in which no one can say with confidence which candidate was the deserved winner.
In circumstances in which we have, for a variety of reasons, a dubious result and we have the ability to reach a "vastly" more trustworthy result, why would we not do so? Or, from a different angle — in the administration of justice, why would a court, taking due note of vulnerabilities and uncertainties of mail-in voting, and the evidence suggesting fraud in this election, not order a re-vote?
Would that be "legislating from the bench"? As the mail-in laws were not ordered by courts, but enacted by state legislatures, one could argue that it would — unless, that is, the court correctly found that such a law violated the rights of some individual or group.
Under our laws, voting is a right. The 14th Amendment to the Constitution holds that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This clause has been interpreted to mean that states may not discriminate against out-of-state travelers, which would certainly seem a valid interpretation. The wording of the clause, however, does not limit the clause to that; it can be applied to state laws that affect not just out-of-state travelers, but its own citizens as well.
That said, there are at least two arguments in which this clause might support a challenge to mail-in laws.
1. a) In passing voter laws that, through their vulnerabilities to fraud, needlessly risk the diminishment of votes that are legally cast, states "abridge the privileges of citizens of the United States" under their own purview. b) If the risk is of such a nature that the realization of it cannot be proven, then the party challenging the law does not have the burden of proving that such risk was realized. Instead, those states passing such laws that increase the risk of voter fraud have the burden of proving that such risk was not realized. But since the proof of a negative is impossible, that burden cannot be met, and, therefore, such laws cannot be constitutional.
2. In passing voter laws that, through their vulnerabilities to fraud, needlessly risk the diminishment of votes that are legally cast, states needlessly put the integrity not only of the state elections, but of federal elections at risk. For through federal elections, not only the state, but all other states are affected. If a majority of states became "mail-in" states, they would decide policy to which in-person states would be subject through a process such in-person states may consider corrupt. This seems untenable; for a common democratic enterprise, at least with respect to the potential diminishment of legal voting, there would seem to be a need for a common standard on such issue — one that, based on the Constitution, is defined by the courts. Such a standard would apply to federal elections but (barring adoption of the first argument) not to state elections.
(This argument means not only that some states may challenge mail-in voting; it also means that other states may challenge in-person voting, presumably on the contention of it being a suppression of the vote. While that might be done, there would — at least when challenged states also have early voting and restricted absentee voting — not seem to be an argument to support such a challenge.)
According to the Center for the Study of Federalism, Alexander Hamilton, in The Federalist No. 80, wrote that the privileges or immunities clause "may be esteemed the basis of the Union." Yet, the Center notes, this is one of the least developed principles in American constitutional history.
This may be a good time to develop that principle. We very well may never have another opportunity.
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