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William & Mary Law School | Election Law Society

Vote by Mail: Wave of the Future?

In 1998 Oregon voted by a wide margin to expand its experimental vote-by-mail system to all primary and general elections in the state. Oregon was followed by Washington, which with the exception of a single county, has adopted a similar vote-by-mail system. The typical voting procedure in these states is that three weeks to a month before the election the state mails ballots to all registered voters who fill them out and have until the night of the election to return them via mail or by dropping them off at a county office. Now, in 2009, the model pioneered by the northwest is being tested in the east, as New Jersey is moving towards its own version of the vote-by-mail system. New Jersey has allowed voters to vote absentee without restriction since 2005, but the off-year elections in November 2009 were the first test of a new system that more fully embraced the vote-by-mail concept, by removing any pretense to the ballot being for absentee purposes.  This system differs from that embraced by Oregon and Washington in that voting by mail is not mandatory, it’s just another option in addition to more traditional polling systems. New Jersey embraced the program for the same reason that states like Oregon and Washington did, in an attempt to boost voter participation by making voting more convenient. The New Jersey Secretary of State touts the new program as removing any excuse for Jerseyites not to vote, and Oregon boasts of an 86 percent voter turnout in the 2004 Presidential Election and a 70 percent turnout in the 2006 midterms.

It remains to be seen, however, whether the vote-by-mail model is truly successful in driving up voter participation. The change to New Jersey’s early voting law in 2009 was likely a response to the lack of success from its 2005 expanded absentee voter law. According to numbers tabulated by the New Jersey Secretary of State, in every statewide primary and general election from 2003 to the 2008 primaries, absentee voting never amounted to more than .05 percent of ballots cast.  Even Oregon and Washington, the two states that have implemented mandatory vote-by-mail systems, the results may not be as remarkable as advertised.

Oregon’s numbers are challenged by the George Mason University United States Elections Project. According to Dr. McDonald, Oregon’s voter participation was 72 percent, still quite high, but not as atmospheric as the 86 percent that the Secretary of State boasts of. Under Dr. McDonald’s analysis Maine, another state with a high profile election in 2009, had slightly higher voter participation than Oregon during the same period, at 73.8 percent. Maine is one of the only other states in the east which has allowed early absentee voting without restrictions, but has not implemented a full vote-by-mail system. However, the move towards vote-by-mail has been so recent in terms of election cycles that it is difficult to get a real grasp on whether these numbers are influenced by the system or if the unique dynamics from election to election are really driving voter participation. For instance, Oregon’s voter participation from 2004 to 2008 actually declined to 67.8 percent while Virginia, a state that does not allow early voting, saw their participation increase from 60.6 to 67.7 percent. It is still too early in the experiment to say whether or not vote-by-mail independently increases participation. An alternative explanation could be found in the broader trends of voter participation, which according to Dr. McDonald’s analysis hit its modern nadir in 1996 and has been steadily rising ever since.

New Jersey’s adoption of a voluntary early vote-by-mail system could be somewhat risky given the experience of other states that adopted a hybrid model. The 2004 Washington gubernatorial election between Dino Rossi and Christine Gregoire, ultimately decided by 129 votes, subjected the vote-by-mail system to an extended legal battle. When the Washington Secretary of State produced a report to figure out what went wrong, they concluded that a major factor contributing to the contentious recount was “the inefficiency and high risk of error caused by administering two elections simultaneously.” Washington’s response was to pass a law in 2005 that allowed counties to choose whether or not their voting systems would be entirely by mail. As of the 2009 election, all but one county has chosen to do so.

The experience of Washington should be a warning to New Jersey that the success of their program might lead to a legal nightmare. There is little risk posed by absentee voter rates of .02 to .04 percent. However, if New Jersey’s system is successful at raising the level of mail-in votes to the 68 percent that Washington achieved during the 2004 gubernatorial election, the problems of administering two systems simultaneously may arise. The potential for these recounts, with their cost and legal battles, to damage the credibility of the system should give advocates of hybrid systems some pause. The 2004 recount shows that the problems with absentee ballots that are experienced by all systems, like the recent recount in Minnesota, may be magnified by hybrid systems.  In any event, the gains of vote-by-mail systems in terms of increased participation need to be weighed against the costs that such systems might create.

Nathan Pittman is a student at William and Mary Law School.

After a difficult and rackety life and two husbands you find yourself breathing the rarefied air of a world you pay to do homework could only have dreamed about
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1 Comment

  1. In Wisconsin, we have no-fault absentee voting and election-day registration, which is about the most voter-friendly setup I can imagine. And we still only see around 70% turnout for Presidential elections. Some people just can’t be bothered.

    Personally, it makes me a little sad to imagine switching to mandatory vote-by-mail. I like the civic nature of going to the polls.

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