Improving the Voting Experience After 2020

Good election administration requires certainty. Some changes to the process are necessary and inevitable, but policymakers have fallen into a dangerous and unrelenting cycle of regaining interest in election administration only in the lead-up to major elections. It is then that they make major changes to the process. Most changes during a normal election season should not be implemented during the highest-turnout cycles.

While the BPC Task Force on Elections believes that a one-year lead is the optimal amount of time for the implementation of new policies and procedures (or longer for major changes like adopting same-day registration or rolling out all new voting equipment), we acknowledge that some circumstances necessitate late changes. Any changes made less than 90 days before an election risk administrative mistakes and voter confusion.

Thus, legislative and administrative changes should be avoided for upcoming elections once that state is within the 90-day window before Election Day unless extreme, emergency circumstances apply. Regardless of when they are made, states should communicate to the public changes to standing election procedures via all available means.

In 2016, the United States Supreme Court reversed a Ninth Circuit ruling that blocked the implementation of Arizona’s then-new voter identification law. The case, Purcell v. Gonzalez, established what is known today as “the Purcell Principle.” The Purcell Principle maintains that courts should not change election rules and procedures in the period just before an election takes place. Since 2006, the U.S. Supreme Court has used the Purcell Principle in several court rulings, most notably in 2014, when the court blocked a Texas voter-ID law, and in 2020, when the court blocked Wisconsin’s absentee ballot deadline extension.

Despite this legal precedent, in 2020, courts made a slew of last-minute rulings that changed standing election procedures (any procedures that were in effect during previous election cycles). The BPC Task Force on Elections strongly believes that courts must disincentivize a late-litigation strategy that creates a flurry of litigation near Election Day about voting procedures sometimes long in effect.

Prohibiting any and all court-mandated changes within 90 days of an election could negatively impact voting rights when a voter’s access to the ballot is in question and a court is called on to intervene. With this concern in mind, there are still steps that states can take to discourage, but not ban, last-minute court changes; namely, states should operationalize the Purcell Principle by encouraging courts to consider an order’s timing in its decision. If a case could have been raised before the 90-day period, an operationalized Purcell Principle would count the timing against the case, but not dismiss it altogether. This would discourage defendants from raising cases in the lead-up to an election that could have been raised beforehand, while still allowing courts to weigh in on cases, and even make rules changes, when necessary.

State legislative action will only be able to influence state-level courts and will not influence constitutional questions.

While last-minute changes to election rules should be avoided when possible, in extreme circumstances, courts must intervene to protect voters’ access to the ballot or to secure the integrity of the vote, especially when state or federal constitutional questions arise. Furthermore, if a state legislature has failed to adopt the necessary rules or precautions to protect voting access (for example, on how to safely conduct elections during COVID-19), litigation may be the only means of enacting necessary changes to election administration.

Under such circumstances, state courts should consider challenges to election administration rules on an expedited basis, thereby maximizing the amount of time election officials have to implement and inform constituents of any changes. The success of this recommendation is directly intertwined with the implementation of Recommendation 2, that challenges to standing election procedures within 90 days of an election should be considered by courts only for future elections.

When considering a challenge to standing elections laws, courts have on occasion prolonged consideration of the case so that a decision would not be made until after Election Day, thereby insulating the jurisdiction from last-minute changes. Courts should continue to exercise this discretion when considering cases on an expedited basis, favoring stability and reducing voter confusion. Cases raised in the 90-day window should continue to be considered on an expedited basis, but courts should be tactful about when to implement changes to standing election laws; unless a change urgently needs to be made to protect voter access or election security, it should only be applied to future elections.

Election observers are crucial to voter confidence and a transparent elections process. However, in 2020, observation of the vote counting process became a contentious flashpoint in an even more contentious election cycle.

To curb the ability of candidates to claim ignorance or declare wrongdoing during the observation process, states and local election jurisdictions should produce and publicly display detailed observation procedures and guidelines well in advance of Election Day. Where applicable, election officials should also include the observation procedures in candidate manuals and other forms of official guidance for candidates. These procedures must be written in clear language and available on public websites.

Even in decentralized states where local officials create and administer their own observation plans, states should produce best practices for observation procedures that local jurisdictions can follow or expand upon.

The COVID-19 pandemic cemented the importance of proactive and comprehensive emergency preparedness plans. As the pandemic swept the country in the height of primary season, states rushed to accommodate public health guidelines with a slew of last-minute changes to elections procedures. Such last-minute changes were certainly warranted, but in many states, changes implemented unilaterally were only to be reversed by courts or other authoritative bodies days later. While emergencies can’t be predicted, there are steps that states can take to insulate their elections systems from catastrophe.

States can proactively mitigate the chance of back-and-forth policy changes during an emergency with a detailed emergency response plan that clearly documents who has decision-making authority during an emergency. These state guidelines should be coupled with a rigorous regime of local emergency plans, as noted in the following Recommendation 6.

There are three central components of an effective emergency response plan. First, local election offices should be required to create an emergency elections plan far ahead of major elections. Second, they should be required to file that plan with the relevant state authority—such as the Secretary of State’s office—for review, assistance, and coordination. Third, and most often overlooked, local election officials should be given legal authority to make the decisions laid out in the emergency response plan.

Local election administrators should not have to reinvent the wheel. To ease the burden on localities, states should develop a base template from which local election administrators can expand. Furthermore, if elections are primarily administered at the county level, those county administrators should be required to collaborate with their cities and townships, which have localized expertise in emergency planning. The cities and townships should be permitted to use the county’s emergency plan, with the option to expand as needed.

Once counties, cities, and townships develop their plans, they should be required to submit them to the state for review and approval. The extent of the state’s involvement may vary, but the intention is to create a clear, comprehensive, and coherent approach so that in an emergency, there is cohesion within each county and state about how to proceed. It also means that the emergency procedures can be vetted long before implementation.

Finally, given the high costs often involved in responding to an emergency, states should commit to assisting local jurisdictions in offsetting any costs involved in their preapproved emergency response plan.

Voter-verifiable paper ballots are the foundation of a secure election ecosystem.

The task force has endorsed both hand-marked and machine-marked paper ballots as secure methods of casting a ballot. To meet modern security standards and preserve voter confidence, ballot marking devices must produce a voter-verifiable paper record to be the ballot of record in recounts and audits. Contrary to paperless direct-recording electronic voting machines, in which voters mark their choices electronically and the machine automatically tabulates vote totals (without any paper record of the voter’s choice), machine-marked paper ballots enable voters to independently verify their choices before submitting their ballot into the tabulator. Machine-marked ballots often come equipped with a bar code for more efficient tabulation; pairing this bar code with a voter-verifiable and human-readable paper record allows ballots to be independently audited to provide confidence about the accuracy of the vote count.

In some jurisdictions, voter-verified paper ballots may need to be supplemented or complemented by electronic images during precertification audits.

The success of absentee and mail ballot return deadlines relies heavily on voter education. This outreach is most effective through the trusted sources of information like local and state election officials. Task force members have found that states that require ballots be in-hand at the close of polls have a roughly equivalent late ballot rejection rate to states that accept postmarked ballots for a set number of days after Election Day. This suggests that, with sufficient voter education efforts, voters will return ballots by any deadline policymakers determine is best for their state if it is clearly communicated to voters.

Ballot return procedures were consistently the target of public speculation and disinformation campaigns in 2020. Policy reforms based on 2020 should not be geared toward the least common denominator, nor toward unfounded claims of fraud that have little to do with reality. That said, perception matters, and local and state administrators should do what they can to insulate their elections systems from rebuke and disinformation.

Requiring that absentee and mail ballots be received by the close of polls may protect election officials from some of the false claims made about later-arriving ballots. However, that is not a realistic option for all states; many state policymakers from across the political spectrum have ruled that absentee ballots postmarked by Election Day and received within a set number of days after are valid and should be counted in accordance with state law. The task force does not endorse either a return by Election Day or a postmarked by Election Day option as qualitatively better, although, there are clear implications for post-Election Day timelines.

In states where voters are used to being able to mail their postmarked ballot on Election Day, or in states with an absentee ballot request deadline close to Election Day, states should focus on simplifying and codifying ballot return deadlines. Clarifying deadlines in state statute reduces voter confusion and mistrust in the process.

While mail voting rates may not remain as high as they were in 2020, we expect that rates of mail voting will be substantially higher than in 2016 for the foreseeable future. The pandemic-related challenges experienced by the U.S. Postal Service in 2020 are also likely to continue for a considerable time. Drop boxes and other return options for mail ballots can provide added convenience and better security than ballots returned by mail, without the added concern of ballot receipt deadlines—but they are not a cost-free option.

Ballot drop boxes were not new in 2020, but they exploded into the national consciousness in an unprecedented way during the pandemic. To ensure the security of drop boxes, states should follow established best practices when placing, maintaining, and operating drop boxes. For example, Colorado requires that drop boxes have 24-hour lighting and camera surveillance, as well as established pickup times and procedures involving two-person pickup teams with proper identification.

Drop boxes may provide long-term cost savings, but states should help local jurisdictions offset the high upfront and ongoing maintenance and security costs associated with them. Some jurisdictions may opt for lower-cost options, such as having drop boxes inside secure locations like elections offices or in elections offices’ parking lot. Such alternatives offer a more feasible means of expanding ballot return options when resources or political support are sparse.

In 2020, administrators successfully encouraged voters to vote prior to Election Day in large numbers. This outcome was achieved as a result of policy changes and herculean communication efforts. Had that not happened, Election Day lines would have been overwhelming. Lines have been a persistent problem in recent decades, but not as much in 2020, when social distancing could have exacerbated the negative effects. We must avoid backsliding toward policies that push voters primarily to Election Day voting, especially as limited Election Day resources mean that polling places are easily overwhelmed.

In January 2020, the task force recommended that states provide at least seven days of early in-person voting. While seven days should be the minimum across all states, states should also have reasonable flexibility to balance different modes of voting in ways that work best for their voters.

Our goal is not to create one single voting regime that is the same in all 50 states. Rather, states should tailor this recommendation to meet the needs of their constituents. States with extremely low rates of absentee voting, and more specifically those that require an excuse to vote absentee, should offer additional days and locations for in-person early voting. Alternatively, states with extremely high rates of absentee or mail voting may not need as many in-person early voting sites during the weeks ahead of the election. States and local jurisdictions cannot be expected to do more of everything without commensurate resources.

There needs to be a balance between post-Election Day administrative timelines and public expectations for quick results. Long certification windows after Election Day can open election officials up to more unsubstantiated claims of fraud and abuse, but the process cannot be rushed if accuracy is the ultimate goal.

Many states’ post-Election Day timelines are opaque, even to experts and more sophisticated observers of the elections process. Some of that is due to vague state laws that give ranges of time to complete tasks or fail to delineate between state and local responsibilities. These timelines should be revised, clarified, and communicated in ways that the public can easily digest, both in state code and procedure manuals. Contextual transparency requires that states do more to explain what processes are taking place by adding the necessary information for the public to understand what to expect and when.

In addition to lacking contextual transparency, certification timelines in some states allocate a disproportionate amount of time to state versus local tasks, the latter of which tend to be more extensive and time-consuming. When crafting their timelines, states should carefully consider what needs to be done, and how long election officials need to complete it. BPC will soon be releasing a white paper further exploring best practices for state and local certification timelines.

Election officials have increasingly become the target of threats of violence when carrying out their responsibilities. BPC’s Task Force on Elections predicts that this new feature of election administration will exacerbate already existing concerns about maintaining a strong workforce and recruiting the next generation of election administrators.

Election administrators almost uniquely define themselves as “thick-skinned.” They are not seeking to bar any American’s speech that is protected by the First Amendment. However, many election administrators were forced into hiding for their own security in 2020. This warrants a strong response.

First, states should grant election officials the option to redact from public records information about their personal residence. Such exemptions from public records already exist for other public officials, especially members of the judiciary and law enforcement. No public official should ever have to deal with angry mobs outside their homes for carrying out their legal responsibilities.

Second, state and local policymakers—in coordination with federal officials and bolstered by federal funding—and law enforcement must take these threats seriously. No one should ever feel unsafe solely because they are working at an election office. We do not expect the passion around election outcomes to ebb in the short term. The task force understands that, to date, election funding has been limited. However, we believe a portion of these limited resources, and future increases, must go toward the physical security of election personnel.