Opinion: Americans must be prepared to fight for every mail-in ballot to be counted
Months ago, I lived through this election nightmare during the Democratic primary race for New York’s 12th congressional district, which dragged on for more than two months due to problems counting absentee ballots. I warned then that the delays and the enormous number of tossed ballots were a canary in the coal mine ahead of the presidential election on November 3. I did so not to validate baseless claims of voter fraud, but to sound the alarm that rejected ballots due to overly stringent rules can disenfranchise voters and change the outcome of an election.
Of course, claims that mail-in voting is a meaningful source of voter fraud are completely baseless. Instead, we should consider how some of these laws end up discouraging people from voting and unfairly silencing many of those who do.
There are various reasons why mail-in ballots are rejected, including tardiness (such as missing or late postmarks) and signature errors (either missing or non-matching signatures). In some states, like North Carolina, laws require voters to provide a witness’ signature.
But the larger truth is that many of these technical rejections are the result of overly-aggressive laws that deter people from taking part in a process that already creates multiple opportunities for voters to fail. When used nefariously to exclude more votes, this system stops rewarding democratic participation, and instead thwarts it.
It’s important to note that these laws were developed over the years by both Democratic and Republican legislatures, but they are being deployed in various degrees to discard votes. For example, a court recently ruled that Texas can reject ballots for mismatched signatures without giving the voter a chance to appeal.
And laws like North Carolina’s witness requirement or Texas’s discretionary signature-match requirement only serve to screen out more ballots. Absent any proof of fraud, the presumption should be that the voters duly cast their ballots, and states should provide an opportunity for voters to correct mistakes.
Unfortunately, this will not be the first election in which thousands of ballots were discarded. During the Democratic primary election in New York City this year, a record number of voters requested mail-in ballots and at least 20% of mail-in ballots were rejected — many through no fault of the voter.
Why did this happen? In some cases, the US Postal Service failed to postmark returned ballots or did not do so until after Primary Day, rendering them invalid under state law. My campaign’s own analysis found that over 10% were discarded because voters didn’t spot a tiny signature line on the back of the ballot envelope. Some were even contested because the ballot envelope was sealed by tape instead of saliva.
To make matters worse, testimony in a lawsuit I filed with fellow candidate Emily Gallagher and a dozen disenfranchised voters revealed that 34,000 ballots were mailed out just one day before the election, virtually guaranteeing that voters would not have enough time to vote.
President Donald Trump even brought up my election in a disingenuous effort to discredit mail-in voting as a fraudulent — but this was far from the case. The issue was not voter fraud — it was voter disenfranchisement. The election was marred by a web of technical issues that created multiple opportunities for error, problems that had long been overlooked by both parties and were exacerbated by a pandemic.
We successfully argued in federal court that a ballot that lacked a postmark, even though it was duly mailed by a voter, should not be rejected. The ruling allowed an additional 975 votes to be counted, permitting me to make up significant ground against my opponent.
However, more than two months after the election, we had no recourse for the remaining tossed ballots. In the interest of finality, I conceded, but our experience helped lead to nationwide changes in vote by mail rules, including here in New York — where enveloped were redesigned to include a red X where the voter must sign, so fewer voters miss it.
In past elections, when relatively few people voted by mail, rejection rates went largely unnoticed. Now, with as many as half of all registered voters in some states requesting mail-in ballots, the results of a close election could ultimately hinge on a few thousand ballot rejections. If this is the case, we need to be prepared to wage a fight over these discarded ballots.
While many people have made the case that Trump poses a threat to our democracy, and sounded the alarm on foreign interference, the result of the election could ultimately come down to something decidedly less dramatic: laws that place an undue burden on absentee voters. Like the hanging chads and other election controversies in 2000 that took weeks to resolve, to many people’s dissatisfaction the challenge will be to have the patience to count every single vote even weeks after the election.
We have to stand firm on the principle that the democratic process does not end when it becomes inconvenient; nor does it end if or when a candidate declares victory. It ends when every constitutionally mandated vote is counted.
