Preparing our Democracy for Crisis: An Interview With Phil Keisling (Part Two)
By Evelyn Li
Right now, the biggest crisis facing our democracy is the COVID-19 pandemic, which has rendered large-scale in-person voting extremely dangerous. Fortunately, in response to the crisis, an unprecedented effort to safeguard our elections has emerged. Many reforms have already been adopted, particularly related to the expansion of vote-by-mail.
To dig deeper into vote-by-mail, Equal Citizens Fellow Evelyn Li spoke with Phil Keisling, former Oregon Secretary of State and longtime champion of vote-by-mail. Among his many accomplishments — as a journalist and a state legislator — Keisling championed the successful 1998 Oregon ballot measure that made the state the first to automatically mail ballots to every active registered voter (a vote-at-home system). Currently, he is the Chair of the National Vote at Home Institute.
This is the second half of the in-depth interview. For part one, click here.
Note: For more background on Keisling and his thoughts on vote-by-mail, check out our March 6th episode of Another Way. In it, our Campaigns Manager Adam Eichen spoke with him in-depth about the weeds of vote-by-mail policy.
Many people don’t know how the secretary of state, the state legislature, the governor, and other offices split authority over elections. Could you break it down? From whom should citizens be demanding action?
First and foremost, it is the state legislature that sets the election laws, election rules, and election days. They decide whether to allow people to get absentee ballots without an excuse. 34 states now permit that. 16 states require an excuse, and half of those waive it if you’re over a certain age. The legislature often will set the details of the elections, and this matters. For example, can you apply for an absentee ballot online? Or do you have to print out a paper form, find an envelope and a stamp, and address it to the county clerk.
So, state legislatures, in a normal time, are key to making absentee ballots more accessible or to getting a vote-at-home system created. But in an extraordinary time, governors, and to a lesser extent secretaries of state, have some authority. Secretaries of state can do administrative rules. They can decide that a form for an absentee ballot is confusing and poorly designed. They can then decide to make it better and easier to use. Sometimes they can decide to use money in their budget to mail out absentee applications to voters and encourage them to sign up for absentee voting.
At the current moment, governors are pretty important, too, because they have emergency powers. Secretaries of state tend not to. For example, the governor of Idaho — a deep red state by the way- — has decided that it will allow people to apply online for a vote-at-home ballot. Likewise, the governor of Ohio pushed to mail a postcard to each voter explaining how to apply for an absentee ballot. (This is still insufficient, as voters still have to actually apply, and then the clerks must send the ballots out.) How far the governor’s emergency powers go are still to be tested. In Wisconsin, the courts told the governor he did not have the power to move the election date.
How important is it that the federal government take action? How does congressional action complicate the idea that states should be the “laboratories of democracy”?
I think Congress’ main frame should be, “How can we make it easier for states to make it easier for their voters?” I do have some disagreements with some of my Democratic friends. For Congress to mandate on all fifty states what I personally think is the best election system out there — a full vote-at-home election system — is dangerous. It sets a precedent that Congress can mandate a kind of election system. That gives Congress the power to, at a future date, legislate the worst possible election system that I could imagine.
Now, what can and should Congress do? I think the easiest thing to do would be to simply take the issue of paid postage off the table. Create a “democracy stamp.” Tell the states, for any ballot that is mailed out by the government or mailed back by a citizen, we’ll pay the postage. That would only be a drop in the bucket in terms of funding. It would probably cost less than $100 million for an election cycle.
There is also an argument for legislating a change for states that currently require an excuse to vote-at-home in a federal election, even during a public health emergency. That is an area where the government might be able to say, “That’s not okay.” In these states, people are literally afraid of endangering their lives to vote, but the states’ statues don’t recognize that as an excuse. Rather than tweaking statues, just get rid of the excuse requirement.
The final thing that Congress can always do is provide more resources to the states. It would be stingy and a total abdication of leadership for Congress not to provide additional funds. If I were a governor, though, faced with the choice between having an election in which hardly anyone will be able to vote, and trying to find the money to actually run a legitimate election, I would figure it out. Nevertheless, Congress should step up and do the right thing.
Your Senator, Ron Wyden (D-Oregon) — the first senator elected by a vote-by-mail system — introduced The Resilient Elections During Quarantine and Natural Disasters Act of 2020. How well do you believe it addresses the issues we face?
I think it is a really good bill. If people look at it, they will quickly understand there is no mandate that you have to mail everyone their ballot automatically. It addresses how you make voting-by-mail much more accessible. It tells the states still requiring an excuse to get rid of it. When we have emergencies declared in enough states — and we have them declared in all fifty states at the moment — it provides necessary funding. I have not gone into all the details, but I applaud Senators Wyden and Klobuchar and others.
I am very disappointed that Republicans in Washington D.C. have not been supportive. I sit here in a state, Oregon, where the Republican Secretary of State, Bev Clarno, has been a big supporter of vote-by-mail since I was in the legislature, twenty years ago. She will tell anyone who asks her that you can run a vote-at-home election with higher turnout, with integrity, with security. The Secretary of State to my north in Washington is Kim Wyden, another Republican. She will tell you the exact same thing. I worked with her predecessors, both Republicans. Utah is a Republican state, and they use vote-at-home. Most counties in North Dakota are red and will run the same kind of election. The fact that making vote-at-home ballots more accessible has become a partisan issue is really very sad to me. Yes, I am a Democrat. But it was a Republican secretary of state, Norma Paulus, who paved the way for vote-at-home in Oregon. In fact, it was a Republican idea in Oregon! I was the latecomer to the cause. I won an election against a Republican who was a much bigger vote-at-home advocate in 1992 than I was.
Many confuse a particular ritual of democracy — the polling place- — with the essence of democracy: participation. I think the evidence is strong that increasing access to vote-by-mail does not benefit either political party. It helps every voter group increase their turnout: the old, the young, the white, the minority, non-affiliated voters, Republicans, and Democrats. If we believe truly in small-d democracy, then why would we not want to encourage a lot more people to vote, whether there’s a pandemic or not?
What about people, Republicans in particular, who cite voter fraud as the basis of their opposition to vote-by-mail?
It’s a non-issue. No meaningful fraud, much less organized, much less capable of flipping an election, has ever occured in any of the vote-at-home states. Forty two million people received absentee ballots in 2018 and also in 2016. The number of cases of people violating the law is in the single digits.
You can never, of course, prove a negative. People will always cite a case, usually in a state with really weak laws or enforcement. Voter fraud, forging a ballot, destroying a ballot, impersonating someone to cast a ballot, faking a signature: all of these things should be a felony — which they are in vote-at-home states. You cannot prove that it can never happen, but you can point to the evidence of just how non-existent it is.
A clerk once asked me, “Phil, have you ever wondered why nobody counterfeits pennies? If you are going to do the crime and risk the time, then you forge hundred dollar bills.” This gets to the very heart of the hyperventilating, conspiratorial, paranoid, myth-over-matter kind of voter fraud accusations that I have heard for a quarter of a century. To try to flip an election felony-by-felony is probably about the dumbest thing that I can imagine any criminal doing. And in a very close race, where you need to have credibility that a candidate actually won, you can literally look at every single ballot because there are paper ballots. With Republicans and Democrats sitting around a table, you can sort through it.
The fraud issue is never going to go away. But I keep asking, if you truly believe it is a serious, real issue, then even the President of the United States should not be allowed to vote with a vote-at-home ballot. Donald Trump was in Florida during the early voting period. He could have rearranged his schedule to vote in-person, but he chose to do it with a mail-in ballot instead.
Thank you so much for speaking with me. Is there anything else you would like to add?
I want to add one more point about security. There are best practices that vote-at-home states have adopted, that every state should adopt, whether they have some or all of their citizens voting from home. Keeping the voting lists as accurate as you can is critical. Ensuring that if people cannot get their ballots, they have other ways to do so, requesting them through email or by phone. It is important that there be a robust infrastructure of in-person voting opportunities, too. There are people who want or need particular equipment. Language accessibility is an issue, as well. And ballot tracking, a technology that has been used in Colorado, is very helpful. It informs voters when the ballot has been mailed, when the ballot has been received by election workers, and then when the ballot has been counted.
The curing process for signatures is additionally critical. Sometimes people forget to sign. Sometimes one’s signature does not match the signature on record. Signature verification is very important, as a security check. But voters should be notified and have the opportunity to fix any problems.
Ultimately, whether you go with system A or system B, there are a lot of best practices that need to be adopted, and now is the best time to start implementing them.
I will put in a final plug for the National Vote At Home Institute. Visit our website to find out how to help the cause. We have tremendous resources available, including our election administration expertise.
Here is the bottom line, COVID-19 has already fundamentally changed American elections. Things will never again be the same. By June, we may have a majority of states that will have had at least one election where most votes were cast through the mail, not at polling places. I think that will create a whole new baseline. How far beyond that we go by November is still to be determined. All of us hope that there will be no need to close a polling place in November due to a public health crisis. But we have to plan for the possibility that the crisis continues and voting-by-mail is the center of our electoral universe. So let’s plan now, think it through now, and focus now on what really matters: continuing to have our democracy be as strong as it can be, despite the worst public health crisis in any of our lifetimes.
Evelyn Li is an Equal Citizens Fellow and an incoming student at the University of Chicago.