Processing Votes by Mail

In his tweets (see my previous post), President Trump wrote “go to your Polling Place to see whether your Mail In Vote has been Tabulated (Counted). … If it has not been Counted, VOTE”

This reflects a common misunderstanding of the way vote by mail ballots are handled. There is a distinction between processing vote by mail ballots and counting the votes on them.

Processing a vote by mail ballot has two basic parts:

1. The voter signature on the envelope is validated, and that the voter has voted is recorded. This can start 29 days before the election ([1], §15101(a)).
2. The envelopes are opened, the ballots are removed and prepared to be counted, for example by being scanned. The ballots are not actually counted at this time. ([1], §15101(b)(1)).

Then, the votes are counted. These counts cannot be released until 8 p.m. on Election Day. ([1], §15101(b)(1), §15101(c)).

So when you go to a polling station, your vote will not have been counted yet, because it can't be counted until the polls close.

Reference

1. California Elections Code Division 15, Chapter 2. Vote by Mail Ballot Processing (2020). URL: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=ELEC&division=15.&title=&part=&chapter=2.&article=.

Don't Vote Twice

President Trump has been railing against voting by mail, claiming it is very easy to commit voter fraud with it. But he supports absentee voting, saying it is much safer. This is very confusing, as there is absolutely no difference in the way ballots from, voting by mail and voting absentee are handled. Indeed, in California, the Election Code used to say “The absentee ballot shall be available to any registered voter” ([1], §3003), and “After marking the ballot, the absentee voter shall … return the ballot by mail” ([1], §3017(a)) or in other ways. Now the Election Code says “The vote by mail ballot shall be available to any registered voter” ([2], §3003), and “After marking the ballot, the vote by mail voter shall … return the ballot by mail” ([2], §3017(a)). Note that the word “absentee” was simply replaced by the words “vote by mail.”

On Wednesday, September 2, President Trump suggested people who vote by mail should go to the polls on Election Day and see if their mailed-in ballot has been counted; if not, he said they should vote again to ensure their vote is counted [3,4]. He repeated this in a series of tweets (see below).

There is a huge problem President Trump didn’t mention — it is illegal in every state in the United States of America to vote twice. And this will be detected.

Here’s why. A “voting location” is a location under control of election officials, where you can cast a ballot. Every voting location has a list of voters who can vote at that voting location. This information is kept in a poll book. So, let’s say you voted by mail. There will be a notation in the poll book that you requested a vote-by-mail ballot. You will be told this; and if you insist on voting anyway, you will be given a provisional ballot. This is used when it is unclear whether a voter can vote, or can vote at that voting location. The ballot is a regular ballot, but it is put into an envelope, which in turn is put into another envelope, and the name of the voter and the reason why they voted provisionally are written directly on the outer envelope. The envelope is then put into the ballot box.

When the votes are counted, the provisional ballots are counted separately. Before a provisional ballot is counted, election judges look at the name and reason, and determine if the vote should be counted. If the voter has already voted by mail, and the ballot received, the judges will disallow the provisional ballot. Otherwise, the provisional ballot will be counted, and when the mail-in ballot arrives, it will not be.

Now, if you did as President Trump suggests, the election officials will know you tried to vote twice, once by mail and once in person because your name will be on the envelope in which you returned the vote by mail ballot and on the envelope of the provisional ballot . You can expect this being reported to the local prosecutors, who take this sort of thing very seriously (see [5], the Ohio cases of McMillan and Richardson, for example).

Rather than risk arrest, if you are concerned enough about your ballot being delivered on time by the Postal Service to do as President Trump suggests, just don’t mail your ballot. Instead, if your jurisdiction allows, take it to the voting location and, rather than voting there, hand it to a poll worker. Most jurisdictions have other locations where you can safely drop off ballots, such as drop boxes or the elections office. It's just as effective as voting in person, and has the side benefit of being perfectly legal.

One other note. Many of us (including me) have been testing voting systems for 20 years or more. We never do any kind of testing during an election because of the risk of corrupting votes and committing an illegal act. So President Trump’s statement that this is a good way to test election security is advice that no professional tester would ever follow.

References

1. California Elections Code Chapter 1. Absentee Application and Voting Procedures. (2005). URL: https://law.justia.com/codes/california/2005/elec/3000-3024.html.
2. California Elections Code Division 3. Vote by Mail Voting, New Resident, and New Citizen Voting (2020). URL: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=ELEC&division=3.&title=&part=&chapter=1.&article=.
3. M. Haberman and S. Saul, “Trump Encourages People in North Carolina to Vote Twice, Which Is Illegal,” The New York Times (Sep. 2, 2020); URL: https://www.nytimes.com/2020/09/02/us/politics/trump-people-vote-twice.html.
4. J. Oliphant, “Trump Encourages Supporters to Try to Vote Twice, Sparking Uproar,” U.S. News and World Report (Sep. 3, 2020); URL: https://www.usnews.com/news/top-news/articles/2020-09-03/trump-says-north-carolina-voters-should-vote-twice-once-by-mail-once-in-person.
5. “A Sampling of Election Fraud Cases from Across the Country,” The Heritage Foundation, Washington, DC, USA. URL: https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/pacei-voterfraudcases.pdf.