“The line between disorder and order lies in logistics.” – Sun Tzu

 

As the Democrat and Republican parties wrap up their conventions, they will embark on their campaigns for President amid a national public health emergency. Instead of traditional retail politics, the battle will be fought primarily through robocalls, virtual rallies, social media, a blizzard of TV ads, and eventually the courts. It’s not far-fetched to foresee a state-by-state rollcall in the House of Representatives, with one vote per state, determining the next President of the United States, a procedure called for by the 12th Amendment of the US Constitution.

 

This year’s controversies echo the 1864 Presidential election. There were calls to delay the vote, a need to change election laws, and concerns about the effect of new communication (telegraph) technology on political discourse. At the center was the need to offer vote-by-mail (“VBM”) to soldiers serving in the field. Interestingly, the Democrats balked at this change. They warned of rampant fraud and a scheme by the Republicans to gain an advantage for their party. In the end, 20 states changed their election laws, and 150,000 Union soldiers voted absentee.

 

Today, a VBM option is available in all states, District of Columbia, Guam, Puerto Rico, and the Virgin Islands, as well as for military personnel and US citizens living abroad.

 

During the 2016 election, 33 million votes (24% of the total) were cast by mail. Voter surveys suggest that close to 80 million may VBM in this year’s election, thus increasing the importance of the logistics of ballot distribution, inbound mail processing, voter verification, ballot validation, tabulation, and custody.

 

So, what is behind the current debate? Since the early 1900s, the option of voting absentee has been an alternative to in-person voting. It works. At least, this is what we believe. But, large complex systems such as the US electoral process are intrinsically error-prone due to its many moving parts. They don’t react well to rapidly implemented changes or sudden surges in volume. Instead, these stresses cause breakdowns.

 

What lessons have we drawn from this year’s primary season? While there were glitches, we believe we have sufficient time to address them. The litany of logistical issues extends to many states. While the USPS’s capabilities are being questioned, we need to fortify every step in the VBM chain, beginning with the finalization of the slate of major and minor party presidential candidates and ending with the certification of the final election results. Nine thousand five hundred local jurisdictions, e.g., cities, towns, etc., 185,000 precincts (voting locations), and 1.4 million poll workers need to be ready.

 

Should we push forward with an aggressive rollout of VBM to mitigate the risk of spreading Covid-19? Dr. Fauci suggests there is no reason why Americans can’t vote in-person as long as they adhere to recommended guidelines. While this may be the case, many voters fear in-person campaigning and voting. Hence, they plan to choose the VBM option.

 

Is our desire to facilitate a safe voting alternative setting the stage for a contested election? Similar to 2000, we run the risk of election night stretching into an election month and beyond. The Supreme Court decided  Bush v. Gore on December 12, 2000, 35 days after Election Day. Litigation arising from a botched transition to widespread VBM could stretch beyond January 6, 2021, the day members of the US House of Representatives and the US Senate convene in a joint session to count and certify the Electoral College results.

 

What happens if a sufficient number of electoral votes are tied up by litigation, and neither candidate can earn the necessary 270 votes to be elected the President of the United States? The House of Representatives would go into session to elect the President, and the Senate would meet to elect the Vice President. Alternately, the politicians could pursue a backroom deal, an approach used to avoid a constitutional crisis and settle the election of 1876. In 1877, the standoff between Hayes and Tiden was settled by a political compromise, which returned political control to the south, kicked out the Carpetbaggers, and laid the seeds for the oppression of the freed slaves. If needed, what compromises are we prepared to make to resolve the election of 2020?

 

How does President Trump and Vice President Harris, President Biden and Vice President Pence or interim-President Pelosi sound? While a long-shot, the contingent election procedure called for by the 12th Amendment of the US Constitution could determine the results of the 2020 election. As it stands, Donald Trump has an advantagedue to the Republican’s control of the majority of congressional delegations. Since each state gets one vote, this may be the first time since 1876 that House races matter, especially in states like AZ, FL, MI, and PA.

 

While each step in the VBM electoral process is vulnerable to dirty tricks and litigation, the in-bound handling of absentee ballots is the most susceptible to claims of disenfranchisement. Each state has its own rules, and its infrastructure may not be adequate to support a defensible voter verification and ballot validation process, especially with the anticipated surge of absentee ballots, expected shortfall in poll workers, and lack of necessary technology. The fight over rejected ballots would be akin to the 2000 “hanging chad” controversy. Even if the voter’s intent can be divined, their absentee ballot would be rejected due to mistakes. Issues could include missing postmarks, mishandled security envelopes, unsigned ballots, mismatched signatures, missing witness signatures, unnotarized submissions, and other requirements. Lawyers armed with sophisticated statistical models can target, challenge, and discredit results at the precinct level. With the insight gained from demographic data, polling results, voter surveys, voting patterns, USPS delivery performance, and historical absentee ballot rejection rates, they would be able to flood the courts with suits on behalf of disenfranchised voters. The use of data and analytics will fuel their efforts and prolong the period of uncertainty.

 

In 2016, 1% of the absentee ballots were rejected, but the error rate will likely be higher due to the number of first-time users of the VBM system. If you assume 50% of voters decide to VBM, and the rejection rate is double the historical rate, close to 2 million ballots would be thrown out. It may be much higher as well as affect certain demographic groups more than others. In this year’s New York primary, tens of thousands of VBM ballots were disqualified and in dispute six weeks after the election. Overall, many of these situations were resolved within the confines of “friendly” intra-party politics, but the upcoming inter-party contests will not be accommodating. Narrow margins of victory will be challenged in order to reverse the results.

 

The upcoming Presidential election will be fought at the ballot box and then in the courts, with each candidate striving to prevent their opponent from winning 270 electoral votes. The electoral system’s goal is to determine the winner and convince the loser and their followers that they lost fair and square. Unlike the grace shown by Hilary Clinton when she didn’t pursue a legal challenge in 2016, this election will be fought to the bitter end. It’s a byproduct of four years of destructive partisanship and distrust on both sides of the aisle. The interest of individual factions will supersede the good of the whole. The mostly untested 133-year old Electoral Count Act may not be an adequate mechanism to resolve a contested election.

 

I’ve painted an ugly series of events that could mar the calendar between November and January. Traders are bracing for prolonged political uncertainty and extreme volatility in the markets. Some say this would be a fitting end to an annus horribilis.

 

What can and should we do?

 

First, governors, state legislators, and election officials should focus on the bottlenecks and issues that could contribute to stalemates in their jurisdictions. Items for their “to do” list include:

 

  • Align the deadline to request absentee ballots delivered by mail to the USPS’s guidance of 14 days (October 20) to avoid delivery issues. VBM will generate 300 million pieces of mail into a system that is geared to handle 182 million pieces of First-Class Mail daily. Since absentee ballots must be postmarked to be considered valid, FedEx and UPS would not be able to pick up the slack. Today, every state’s deadline, except MD, NM, and RI, is inconsistent with postal delivery standards. While we may have less concern with states solidly in the blue or red column, the “rust belt” states of MI, OH, PA and WI need attention. For example, voters in MI can request absentee ballots as late as the Friday before Election Day. Overall, we need to “flatten the curve” and spread out the VBM volume that will enter the postal system in late October and early November.

 

  • Conduct a multi-faceted, intense education / public service announcement campaign to provide training on the proper completion of absentee ballots. While I’ve voted absentee often, I’ve always felt a ping of anxiety as I sealed and mailed my ballot. There will be many new users of the VBM system due to a desire to avoid the risk of contracting Covid-19. They will not be familiar with the process, and their ballots prone to error. From my perspective, an extensive multi-lingual social media campaign should play a central role in preparing voters. The Internet, in particular, YouTube, is my go-to resource whenever I need to learn how to do something. At the same time, we need to guard against cyber mischief that could lead voters astray.

 

  • Ensure the required staffing and coronavirus safe facilities are available to process VBM ballots. While all-mail vote states (CO, HI, OR, UT, and WA) and states with a high historical rate of absentee voting (AZ, CA, and MT) most likely have the required processing infrastructure, many states may not be prepared. Battleground states with significant volume increases include GA (8 x’s), NC (11 x’s), PA (10 x’s), and WI (9 x’s). These, as well as others, will be in the bull’s eye.

 

While many factors determine a state’s readiness for VBM, a state by state scorecard suggests that 30 states earn a grade of C or less. This analysis provides a blueprint for improvements that are needed before November 3. Election administration is a state, not federal, responsibility.

 

Second, VOTE! It’s the bedrock of our democracy.

 

If you don’t vote your interests, who will? The electorate’s overall will, as expressed by the popular vote, could serve as an essential guidepost for those that may need to resolve an electoral stalemate. Make your voice heard!

 

Perhaps, we should end on a more hopeful note. It has been observed that “the Americans can always be trusted to do the right thing, once all other possibilities have been exhausted.” The clock is ticking.

 

January 20, 2021, can’t come fast enough!

 

 

Joe Smialowski

August 21, 2020

 

Follow at Twitter @joe_smialowski

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