How to Get Vote-by-Mail Reform to Biden’s Desk

A powerful House bill faces long odds in the Senate. Here’s what Democrats should fight for—and what they can compromise on.

After the 2020 election, America’s electoral infrastructure is in a weird place. At least six states controlled by Democrats are moving to advance the vote-by-mail expansions made during the pandemic. In New York, for example, Governor Andrew Cuomo is pushing for a law to allow “no-excuse” absentee balloting. At the same time, Republicans in a handful of states are unambiguously trying to make mail-voting harder. Georgia Governor Brian Kemp said he wants to impose a photo ID requirement for anyone requesting a mail ballot, thereby adding a new obstacle for Georgians to vote from home. In Texas, Republican legislators introduced nearly a dozen bills attacking vote by mail, one of which would prohibit the state from sending all voters absentee ballot applications. These moves are on top of actions that GOP officials made last year under pressure from Donald Trump to suppress the vote, such as restricting the use of ballot drop boxes and banning the early processing of absentee ballots.

Given this one-step-forward-two-steps-back reality, the only way to ensure that every American can vote by mail if they want to is for the federal government to create a new baseline of uniform minimum standards that all states would have to meet.

Thankfully, one of the first major legislative initiatives in the new Congress would do precisely that. H.R.1., an exhaustive bill that’s more than 800 pages long, is practically a Christmas tree of progressive democracy-reform priorities: from expanding automatic, online, and same-day voter registration, to ending felony disenfranchisement.

But, unlike the first version of the bill, which passed the House in March 2019 and predictably went nowhere in the Republican-controlled Senate, it also includes key provisions that would build on the success of widespread vote by mail in the 2020 election. It would make no-excuse absentee voting a national right, allowing every American to vote by mail without needing to provide a reason, as some states still require. It would prohibit states from making voters get their mail ballots co-signed or notarized, removing an unnecessary barrier that makes it more difficult to vote from home. It would mandate that every county have a sufficient number of drop boxes where voters can return their filled-out ballots. It would have the federal government pre-pay all postage on absentee ballots, getting rid of yet another barrier to mail voting: cost. It would require that states allow voters to deliver mail ballots at polling stations. And it would bar states from enacting voter ID requirements to request a mail ballot, which Republicans in Georgia and Texas are now pushing for.

Together, these measures would improve the voting process in countless ways—for instance, by getting rid of the uncertainty that voters and elections faced last fall while local laws were litigated, and requirements changed day by day. H.R.1 also has some of the best mechanisms to “prevent Republicans from dismantling voting rights and voting access under the guise of security, all in reaction to allegations of voter fraud that they themselves fabricated,” said Tammy Patrick, former commissioner on Obama’s Presidential Commission on Election Administration.

With a Democratic president and Democratic control of both the House and Senate, a version of the bill is highly likely to pass the House and be considered in the Senate. Beyond that, its fate is hard to predict. The text as is will have an extremely hard time making it through the upper chamber, which Democrats narrowly control in a 50-50 split.

It would be easier for Senate Democrats to shepherd the bill through if they abolish the filibuster—though perhaps in a somewhat changed form to win support from every member of the Democratic caucus. But with Democratic Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona having reiterated their opposition to killing the filibuster, that’s off the table, at least for the foreseeable future. That means Senate Democrats, who sources tell me are planning to release their own version of the legislation after Trump’s impeachment trial, will almost certainly need to agree to considerable compromises on H.R.1 to have a shot at picking up the 10 Republican Senate votes the bill will need for passage.

It’s therefore important to know which of the vote-by-mail provisions are the most essential and non-negotiable—and which Democrats can afford to modify. Otherwise, if Democrats cannot pass a major package of new federal laws and standards, state Republicans will inevitably continue to engineer laws and policies that suppress the vote, with a special emphasis on hindering mail voting.

Here, then, are the parts of the bill Democrats should fight hardest for:

No-Excuse Absentee Voting

This simple change would let anyone vote by mail—without needing to provide a reason, i.e., an excuse—to request an absentee ballot. Several states that eventually adopted universal vote by mail, like Oregon and Utah, first started with no-excuse absentee voting and quickly discovered that voters preferred this means of casting their ballots. While the GOP is targeting this policy now, they were once some of its biggest champions. Utah, a red state, enacted no-excuse absentee voting in 2004. Georgia did the same in 2005 under Republican control. Ironically, Georgia’s Republican Secretary of State Brad Raffensperger is now pushing to get rid of it. That Raffensperger, who showed great courage standing up to Trump during the Georgia recount, has caved to pressure from the conservative base is evidence that only a new federal law can protect the right of voters to receive absentee ballots without having to ask for permission.

The no-excuse absentee provision also ensures that voters can sign up for absentee voting permanently, instead of having to do so again and again for each election, which adds another unnecessary burden on the voter. Democrats need to make sure that makes it through any final passage.

Access to Ballot Drop Boxes

In universal vote-by-mail states, one of the most popular means for returning filled-out ballots is through drop boxes—secure sites where voters can hand off their ballots like they return books at a library. That’s why the more accurate term for the system is actually “vote at home”: You can fill out your ballot around your kitchen table, do your research on down-ballot races, and mail it back or drop it off when you’re ready. Drop boxes proved especially valuable during last fall’s election when delays in mail service (manufactured by Trump’s postmaster general) made voters rightly nervous about relying on the postal system to deliver their ballots in time to be counted.

Unsurprisingly, one of the biggest Republican strategies to depress turnout in 2020 was eliminating or severely limiting ballot drop boxes. In Ohio, for instance, the Republican secretary of state only allowed one drop box per county. That resulted in Ohio’s densely populated Cuyahoga County, which had more than a million voters, having the same number as Vinton County, which had a little more than 13,000 voters. Republicans won’t be able to pull such moves in the future if Senate Democrats can protect a provision in H.R.1 mandating that every county have one ballot drop box for every 20,000 eligible registered voters.

Getting Rid of Witness Signatures

Democrats should also hang tough on language in the bill prohibiting state and local governments from requiring witness signatures on absentee ballots. They aren’t necessary to prevent fraud; virtually every state with absentee voting already verifies that the signature on a mail ballot matches the one on the voter’s registration, a security measure that proved highly effective in 2020. Despite unprecedented efforts by Republicans and conservative groups to dig up evidence of widespread fraudulent voting, none was found. Witness signature requirements, like those on the books in such states as Wisconsin, North Carolina, and South Carolina, serve no purpose other than suppressing vote-by-mail balloting. And at that, they are effective. The Associated Press reported in September that  “lack of a witness signature or other witness information has emerged as the leading cause of ballots being set aside before being counted in North Carolina, with problems disproportionately affecting Black voters in the state.”

Allowing for a “Cures Process” to Fix Errors or Discrepancies on Mail Ballots

H.R.1 has an important provision that elections officials who have administered vote-by-mail elections insist is essential: allowing a period of time for voters to address or fix any problems with their ballots. This gives the voter an opportunity to ensure they are not effectively disenfranchised for minor errors, like forgetting to sign both the ballot and the outside of the envelope. The bill mandates that each state give voters 10 days to rectify any defects with their ballots after being notified of a problem.

While Senate Democrats need to stand their ground on areas like these, they can budge on a few others without putting the future of democracy at risk:

Pre-Paying Postage on All Mail Ballots

No serious voting rights expert would oppose pre-paying postage for absentee ballots. It’s a simple way to make absentee voting easy—especially at a time when fewer Americans are using the first-class mail system and don’t necessarily have stamps laying around.

Under H.R.1, the federal government would reimburse states for providing prepaid postage to their voters. Republicans will doubtlessly whine about the cost. But one legitimate complaint they could raise is that the mandate, as written, could put states and municipalities in a tough budgetary position until the federal treasury pays them back, according to Patrick of the Presidential Commission on Election Administration. A better way to accomplish the goal would be to expand a program already in place that pre-pays postage on all mail ballots for military personnel overseas. That would require Congress to set aside money through appropriations to cover the cost outright, rather than having states send the federal government a bill every time they conduct an election. In other words, Democrats shouldn’t cave on pre-paying postage on mail ballots, per se, but they should be willing to modify how they plan to do it.

Early Voting

H.R.1 mandates that each state holds 15 days of in-person early voting. While early voting is vital, such a high minimum number of days could put a heavy cost burden on states, particularly small ones, that already offer early voting. “You might end up forcing state election officials to spend money on early in-person vote centers that don’t need them while forcing them to eat the cost,” said Amber McReynolds, the CEO of the National Vote at Home Institute, who used to run Denver’s election office.

Maryland, the home state of the bill’s chief sponsor, Democrat Rep. John Sarbanes, offers eight days of early in-person voting. Rep. Sarbanes told me he was open to changes on that provision based on negotiations and consultations with elections officials and administrators.

Photo IDs

The drafters of H.R.1 were absolutely right to include language prohibiting states from requiring photo IDs for vote-by-mail ballots. As with witness signatures, these requirements do nothing to reduce the already vanishingly small amount of voter fraud. They serve only to make it harder for citizens who lack such IDs (disproportionately the poor, the elderly, and people of color) from participating in elections. Nevertheless, it’s a sure bet that Senate Republicans will demand a photo ID requirement as the price of any electoral reform bill they might support.

The good news is that there may be ways for Democrats to compromise on this issue without actually giving much up. A good template for such a compromise is the one Kentucky’s Democratic governor, Andy Beshear, brokered with his Republican-controlled legislature and the Republican Secretary of State Michael G. Adams. While the law requires voters to show a photo ID, almost any kind—including an expired student photo ID—suffices. Voters who lack even that can show a non-photo ID (like a credit card or Social Security card), fill out a one-page form, and vote like anyone else. In the end, only .04% of voters had to fill out the form, suggesting (though not quite proving) that the law did little to deter voting. “If I had my way, Kentucky would not have a photo ID law,” writes University of Kentucky professor of law Joshua A. Douglas. Still, the compromise, which he helped negotiate, was a “reasonable trade off,” he argues—one that “gave the Republican Secretary of State a political ‘win’ that could satisfy his base while he negotiated with Beshear to make it easier to vote during the pandemic.” Senate Democrats will almost surely have to contemplate a similar compromise when they take up H.R.1.

The reforms in H.R.1 offer an early blueprint for the kind of changes Congress and the Biden administration should try to make now to improve the health of our elections. “There is no one reform that will get every American to vote, so we need a bunch of reforms in conjunction with one another,” said Myrna Perez, director of the Brennan Center’s Voting Rights and Election Program. That’s true, and H.R.1 has all the right components. But there is no reform that has a better track record than vote by mail for boosting voter turnout, especially in midterms, down-ballot races, and primaries.

That last category is especially important. By bringing more voters into primaries, vote by mail is one of the few electoral reforms with the capacity to dilute the power of the small percentage of highly motivated and ideological voters who effectively decide which candidates get to run in general elections. It is these voters, especially on the GOP side, who force incumbents to take extreme positions that even they often don’t agree with. The potential to lessen the chance that they will get “primaried” ought to be a reason for incumbent Republican senators to want some version of H.R.1 to make it through their chamber. Another is that, before Trump turned against vote by mail, the system generally helped Republicans bring in more older and rural voters who are key to their base.

Of course, we still have to live with the reality that, for the Republican Party, Donald Trump’s obsessions still rule. So we can expect a fight over this legislation in the Senate. That’s why Majority Leader Chuck Schumer and other Senate leaders will have to pick their battles to get the best deal they possibly can. That means knowing exactly which provisions to fight for, which to compromise on, and which to hold for another day.

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Eric Cortellessa

Eric Cortellessa is the Investigative Editor of the Washington Monthly.