By Todd Carney
Real Clear Public Affairs

RealClearPolitics recently gathered three panels of experts on election issues. The first panel focused on mail-in voting and featured of Professor Derek Muller of the University of Iowa College of Law; Michael Cohen, a columnist for MSNBC and a fellow with the Eurasia Group Foundation; and Professor Bradley A. Smith of Capital University Law School.

Mail-in voting has existed for decades, but with Covid-19, the practice became more widely adopted than ever before. During and after the 2020 election, the national media developed a consensus that mail-in voting was unquestionably the best way to help more people vote, and that it had little to no downside. But widespread litigation and criticism of mail-in voting ensued.


The 2020 mail-in voting changes spurred a lot of litigation. At the time, many courts upheld changes put in place by state executives, such as secretaries of state or governors. These courts typically ruled that Covid-19 created emergency situations close to the election, which called for swift action. Now that Americans are learning to live with Covid-19 and state governments have had two years to fix the mail-in process through legislation, courts are less likely to buy into “emergency” legal rationales.

A significant portion of the country still believes, however, that many Covid-19 restrictions should still apply. Some Americans still wear masks everywhere, some are deeply concerned about monkeypox, and the public health community regularly issues warnings about the latest increase in Covid-19 cases. Most people who buy into these ideas are on the left, so it is conceivable that a liberal judge might still cite a rationale for emergency measures.

But as our panelists point out, state legislative action now prevents some of these potential situations. In Georgia, many criticized the decisions made by the secretary of state before the 2020 election, so Georgia passed legislation taking certain decisions out of the secretary’s hands and clarified rules on mail-in voting.

2022 Results

Much of the litigation from 2020 occurred due to divided state governments. In Pennsylvania, the state supreme court had issue rulings on elections because the Democratic governor and Republican-controlled legislature could not agree on election rules.

In 2022, Republicans are likely to win many state offices, which could result in more cases of Republican-controlled government, which in turn could lead to more changes in election laws. The 2018 elections created a similar scenario but with Democrats creating the changes. Many Republicans felt Democrats’ changes violated federal protections for voting, and these objections formed part of the basis for Republican challenges to the 2020 election. So the question is: Could the 2022 election results lead to 2024 election challenges from Democrats?

Such a situation would, of course, rely on Republicans winning the presidency, but by a relatively close margin. In our panel discussion, Derek Muller noted that election litigation and allegations of electoral wrongdoing are often motivated by partisanship. If Republicans lose, some of them will claim that overly lax voting laws led to the results. Meantime, if Democrats lose, they will allege that overly strict voting laws were to blame.

A National Standard

Much of the federal litigation concerning mail-in voting, especially in the aftermath of the 2020 election, concerned how various states’ rules differed greatly. Given that the election laws of one state could affect who becomes president and which party controls Congress, some would argue that the United States needs a national standard. Conservatives have sought such a standard from the Supreme Court. Liberals, on the other hand, have sought to establish a national standard by passing new federal law. Is there any chance of some sort of compromise on national standards?

In RealClear’s panel discussion, Michael Cohen made the point that no federal law that would create comprehensive national standards on elections could get 60 votes in the Senate. Cohen did note that legislation to clarify that the vice president has only a ceremonial role in certifying the election has a good chance of passing because it would not change much functionally, and almost all of Congress wants to avoid another Jan. 6 scenario.

This creates a potential path to solutions on election issues. Congress should start small and pass less ambitious legislation on election issues where there is broad agreement. Additionally, the Supreme Court recently announced that it will hear a case regarding state high-court election decisions next term; so the Court could have a decision next cycle clarifying what states can do.

More Actions from States

Many of these election issues won’t be solved through litigation or national legislation, but there is more that states can do. Some observers have suggested that states clarify election rules in their constitutions, so that state courts have less room to come up with their own interpretations on elections. Panelist Bradley A. Smith said that while this is a potential solution, it would raise a question of how expansive people want their state constitutions to be. All three panelists felt that while both parties will likely embrace mail-in voting to some degree, better alternatives exist, such as early voting in-person.

Democrats’ focus on mail-in voting does seem misguided. It seems that there are more issues with the Postal Service than ever. If someone wants to be sure that his vote counts, the best way to do that is voting in person. Sometimes, of course, a voter cannot cast a ballot in person and needs an absentee ballot. But those scenarios were never controversial. The main issue for critics of mail-in voting is that Democrats want to create universal mail-in voting.

A better path is to follow Georgia’s lead and rein in mail-in voting, while creating suitable alternatives. States should allow early voting about three weeks before an election. Many last-minute developments can occur in elections, and many people do not tune into elections until close to Election Day. So if people are allowed to vote too early, they may make ill-informed decisions. In the 2020 election, some states allowed voting as early as September. Mid-October provides enough flexibility, while also allowing for voters to make an informed decision.

Additionally, states should eliminate provisional ballots. Instead of letting someone cast a ballot at the wrong precinct, poll workers should direct voters to the right precinct. The process for allowing someone to cast a provisional ballot takes much longer than just sending them to the right place. Also, states should mandate that counties with precincts where it takes an hour or longer to vote must create additional precincts to reduce wait times.

Finally, in terms of mail-in voting, states should have no-excuse absentee voting. In these states, voters can cast ballots by mail only if they cannot vote due to a valid excuse, such as being outside of the county on election day, having a disability, living at an education institute outside the county, having a religious preclusion, or being a victim of domestic violence or stalking. These limitations prevent universal mail-in voting and reserve the privilege instead for people who absolutely need it.

Sensible solutions exist as long as we focus on getting more people to vote securely, instead of letting rhetoric and partisanship take over.

Todd Carney is a lawyer and frequent contributor to RealClearPolitics. He earned his juris doctorate from Harvard Law School.