COVID-19 Brings Surge in Remote Voting and Challenges for Secretaries of State: Webinar will explore the issues

Meryl Justin Chertoff, Executive Director, SALPAL

For over 100 years–since the 1876 Tilden-Hayes election resolved by the infamous 1877 compromise ending Reconstruction, the selection of members of the Electoral College was a formalistic affair. Under rules established through the Electoral Count Act of 1887, the US states determine cases or controversies in the selection of Presidential electors; and for all that time, the 50 states have appointed electors based on popular elections. Generally, slates of electors were certified and transmitted to Congress by the Governors well in advance of the Safe Harbor date contained in the 1887 Act, after which selection of the electors from a given state could become a matter for Congress to decide. 

At the beginning of the twentieth century, states began to vest administrative responsibility to Secretaries of State, and today the Secretary of State is the chief election official in 47 states. Until recently, they were seldom-noted but critical players in the electoral process, generally selected through partisan election, but with a culture of neutrality reinforced by their national association, NASS, the National Association of Secretaries of State.   

In 2000, election recount procedures in Florida’s tight presidential race made its then-Secretary of State Katherine Harris a national figure whose partisan profile departed from past practice—with the outcome of that year’s presidential election resolved by the Supreme Court in Bush v. Gore. The decision, in that case, was necessitated by the specter that an evenly split Florida State Legislature might otherwise be required to select its own slate of electors to meet the Safe Harbor date under federal law,  and the tiebreaker might, under those circumstances, have been candidate George W. Bush’s own brother, Florida’s Governor at the time, Jeb Bush.

Since 2000, Secretaries of State have helped transition to all mail-in ballots in Colorado; Oregon; Washington State, Utah and Hawaii. They have implemented changes to ballot and cybersecurity measures recently praised by experts at the Brennan Center as a significant improvement over failures noted in 2016. 

This year, they face unprecedented interest levels in their work, according to New Mexico Secretary of State Maggie Toulouse Oliver, who is also President of NASS, one of the panelists for “Secretary of State: Behind the Scenes Guardian of the 2020 Elections” a conversation hosted by SALPAL via Zoom on September 30, 2020, from 5 pm to 6 pm. Louisiana Secretary of State R. Kyle Ardoin is our second panelist.  Paul M. Smith, Distinguished Visitor from Practice at Georgetown Law and Vice-President, Litigation and Strategy for the Campaign Legal Center will moderate, and SALPAL’s Sheila R. Foster and Meryl Justin Chertoff are rapporteurs.

While the work of Secretaries of State continues to mostly be behind the scenes, the COVID-19 pandemic and shifts in voting patterns mean the volume of mail-in and absentee ballots in the 2020 Presidential race has increased nationwide. Recent national polls suggest that about a third of Americans plan to vote by mail this Election Year. Yet President Trump’s unfounded claims that mail-in voting is rife with fraud stands as an obstacle to voter confidence and a challenge to the work of both the Secretaries of State and the local and county officials with whom they coordinate.

Already, Republican state legislative leaders have filed legal challenges to the timeline for counting of mail-in ballots including suits where Pennsylvania Secretary of State Kathy Boockvar is the named defendant, and on September 28, an application to overturn the decision of the Pennsylvania Supreme Court went to the US Supreme Court. In Georgia, Republicans have appealed a District Court ruling upholding extension of the timeline, and in North Carolina a suit was settled. In total, challenges are pending to state procedures for mail-in and absentee ballots, registration restrictions, and other requirements in at least twenty-eight states. In most of these, Secretaries of State are involved as named defendants or are involved in administering the procedures being challenged.

Canvassing the vote in battleground states, a responsibility of the Secretaries of State in conjunction with local and county officials, is likely to extend well beyond Election Day night.  Particularly in states where county election officials are statutorily prohibited from counting these votes until November 3, will it be feasible to certify a slate of electors by the federal safe harbor deadline of December 8? What steps are being taken to assure a speedy and secure canvass of the votes? Will there be a “red mirage” or a “blue shift”?

Toulouse and Ardoin bring both their states’ perspectives and a national one to the table. In addition to the questions everyone has in mind as we count down the days to the election they’ll discuss:

  • election database security
  • voting machines and paper ballots
  • recount procedures
  • coordination with local and county officials on maintaining the integrity of voter registration   

To join the Zoom webinar, please use this registration form here.