Elections officials and voting experts say President Donald Trump gave bad advice when he encouraged mail-in voters to show up at polling places on Election Day and cast an in-person ballot if poll workers can’t confirm that their mail-in ballot was received.
It is unnecessary, will likely cause long delays at polling places, and could be illegal.
In many states, poll workers will not know whether a mail-in ballot has been received and accepted.
Besides, voters in the vast majority of states can check the status of their mail-in ballot online. Even in states without online tracking systems, voters can call their local elections offices to check their ballot status. (See this spreadsheet for links to state tracking systems.) Also, some states accept and count ballots after Election Day if they were postmarked by Nov. 3.
A voter unsure if their ballot has been received would only be allowed a provisional ballot. Those ballots are counted after the election, and if it is determined that a mail-in vote was received from the same voter, the provisional ballot would be discarded.
Trump raised eyebrows with comments in an interview with WECT TV6 in Wilmington, North Carolina, on Sept. 2. when he was asked if he had confidence in the estimated 600,000 votes that will be cast by mail-in ballot in the state.
Trump, Sept. 2: Well, they’ll go out and they’ll vote, and they’re going to have to go and check their vote by going to the poll and voting that way because if it tabulates then they won’t be able to do that. So let them send it in, and let them go vote. And if their system is as good as they say it is then obviously they won’t be able to vote. If it isn’t tabulated they’ll be able to vote. So that’s the way it is, and that’s what they should do. …
But send in your ballots, send them in strong, whether it’s solicited or unsolicited. The absentees are fine, we have to work to get them. You know, it means something. And you send them in, but you go to vote. If they haven’t counted it, you can vote. So, that’s the way I view it.
The president’s words were quickly seized upon by some who warned it is illegal to vote twice. For example, Michigan Attorney General Dana Nessel tweeted a link to Trump’s advice, along with a personal warning: “Hey folks. Attorney General Nessel here-top law enforcement official in Michigan, for those keeping track. Don’t try this at home. I will prosecute you.”
The following day, Trump tweeted a series of messages clarifying his position:
Based on the massive number of Unsolicited & Solicited Ballots that will be sent to potential Voters for the upcoming 2020 Election, & in order for you to MAKE SURE YOUR VOTE COUNTS & IS COUNTED, SIGN & MAIL IN your Ballot as EARLY as possible. On Election Day, or Early Voting,..
— Donald J. Trump (@realDonaldTrump) September 3, 2020
….after you Vote, which it should not, that Ballot will not be used or counted in that your vote has already been cast & tabulated. YOU ARE NOW ASSURED THAT YOUR PRECIOUS VOTE HAS BEEN COUNTED, it hasn’t been “lost, thrown out, or in any way destroyed”. GOD BLESS AMERICA!!!
— Donald J. Trump (@realDonaldTrump) September 3, 2020
Twitter flagged the second and third tweets, leaving them visible “in the public’s interest,” but adding a warning that they “violated the Twitter Rules about civic and election integrity.”
In an article published by Slate on Sept. 3, Richard L. Hasen, a professor of law and political science at the University of California–Irvine School of Law, noted that it is illegal to attempt to vote twice in an election, according to both North Carolina and federal law. Hasen said a case could be made that Trump may have broken state law that makes it illegal to “induce” anyone to try to cast more than one vote.
In the wake of Trump’s comments, Karen Brinson Bell, executive director of the North Carolina State Board of Elections, issued a statement warning, “It is illegal to vote twice in an election. N.C.G.S. § 163-275(7) makes it a Class I felony for a voter, ‘with intent to commit a fraud to register or vote at more than one precinct or more than one time … in the same primary or election.’ Attempting to vote twice in an election or soliciting someone to do so also is a violation of North Carolina law.”
Bell went on to explain the numerous checks in place in North Carolina to prevent people from double voting. The state has an electronic pollbook that records who has already voted — including by mail-in ballot — and if someone were to insist on voting anyway, they would be offered a provisional ballot. Election officials would conduct research “after Election Day to determine whether it should be counted.”
Bell noted that if someone requests an absentee ballot, but then decides to vote in person, they should simply discard the mail-in ballot and vote in person.
She also noted that there are several ways for mail-in voters to check the status of their ballot, without showing up to the polls on Election Day. Voters can use the state’s Voter Search Tool to find out whether their ballot was accepted by the local county board of elections; they can sign up for BallotTrax, scheduled to launch in the next few days, to track their ballot through the system; or they can contact their local board of elections.
In an interview on CNN on Sept. 3, North Carolina Attorney General Josh Stein described Trump’s call for mail-in voters to check the status of their votes at polling places on Election Day as “poor advice.”
“We have a really strong election administration system here in North Carolina that ensures that every eligible voter can vote easily, safely and securely,” Stein said. “When you mail in your absentee ballot, you can track it online, and it will show on the website that your ballot has been received. There is zero reason to go vote in person once you’ve mailed in your ballot. ”
Matthew Weil, director of the Elections Project at the Bipartisan Policy Center, said polling officials in most states won’t know whether or not a mail-in ballot has been received and accepted. If people come in asking for the status of their mail-in ballot, polling officials “aren’t going to have that information,” he said. Those who are concerned their mail-in ballot may not have been received will be directed to fill out a provisional ballot. They won’t be given a regular ballot. Provisional ballots are counted after the election, and if a mail-in ballot was received, the provisional ballot will be discarded.
In other words, he said, there will not be a “widespread ability” for voters to cast two ballots. The system, he said, will prevent it.
Justin Levitt, an election law professor at Loyola Marymount University, told us in an email that whether poll officials would know if a ballot has been accepted will depend on the jurisdiction.
“In part, it depends on the mail,” Levitt said. “In part, it depends on when the jurisdiction logs mail ballots (some count mail ballots before election day, some after). But it’s always possible to mail a ballot in the morning and then go to the polls 10 minutes later – there’s no jurisdiction where the pollworkers would know at that point.”
To be clear, he said, “every jurisdiction has a way of making sure two votes don’t count.” Levitt said the safeguards Trump described to prevent double-voting are “mostly right.”
“In jurisdictions that begin counting mail ballots after election day, they check each mail ballot against the pollbook entries: any mail ballot cast in the name of someone who voted in person will not count. In jurisdictions that begin counting earlier, the mechanism depends on the jurisdiction,” Levitt said. “Jurisdictions with electronic pollbooks can usually operate with real-time updates in a synchronized system: entries are logged as people arrive at the polls and logged as mail ballots are counted — if someone’s trying to process the mail ballot and there’s an entry for a voter voting in person, the mail ballot isn’t counted; if someone’s trying to vote in person and there’s an entry for a voter having voted by mail, that person will only be allowed to vote a provisional ballot (which won’t count).”
Jurisdictions that don’t have electronic pollbooks will have mail ballots listed on a pollbook if those were already counted, and a mail-in voter showing up in person would only be able to vote a provisional ballot, he said. The remainder of the mail-in ballots would be counted after Election Day.
Is It Illegal?
Just because there are mechanisms to ensure people don’t vote twice doesn’t make it OK to try, Levitt said. “I’ve got a big dog at home, and he doesn’t like intruders. It’s exceedingly unlikely anybody’s going to be able to break in successfully,” Levitt said. “It’s still a crime to try it, whether you succeed or not.”
“The federal statute (52 USC 10307(e)(1)) says that it’s a crime to vote more than once … and that that doesn’t include casting an additional ballot if all prior ballots were invalidated (past tense),” Levitt said. “That clearly exempts bringing a mail ballot to the polls, having it invalidated, and then voting in person (that’s fine). It also clearly exempts voting a paper ballot in person, making a mistake and having it invalidated, and then voting another paper ballot.”
But for voters who cast a ballot both by mail and in person, “the fact that that mail ballot will later be invalidated doesn’t relieve you from the scope of the statute,” Levitt continued. “And many states don’t have the federal caveat. South Carolina, for example, says it’s unlawful to vote more than once at the same election, for the same election. Period. Which sure seems to include what the President is specifically advocating.”
Whether it is a crime may hinge on intent, Hasen, at the University of California–Irvine School of Law, told us in an email.
“State law directs handling of the person who comes in,” Hasen said. “If they say they’ve already voted by mail they won’t be allowed a regular ballot. And their provisional ballot won’t be counted if their mail in ballot shows up. As to whether it is a crime, I think it depends on intent. A voter who says I’m not sure if my ballot was received is in a different position from one who knowingly mails and seeks to cast (even a provisional) ballot.”
In New Mexico, for example, the secretary of state assures, barcodes will allow voters to electronically track the status of their ballot.
“If you mail your ballot back but it still has not been received by Election Day, you still have the option to go to a polling place and cast a ballot,” the secretary of state’s website notes. “You will just need to sign an affidavit cancelling the mailed ballot you submitted.”
Tracking the Status
According to the National Conference of State Legislatures, 19 states require an online system for tracking absentee/mail-in ballots, though a few only require it for military or overseas voters. Another 13 states plus the District of Columbia maintain webpages for tracking absentee/mailed ballots, even though it’s not required by statute, NCSL said.
We found that even more states offer tracking for this election. Only seven states don’t have online ballot tracking, though one of those — Maine — is developing a system it intends to launch before Election Day, a spokeswoman for Maine’s secretary of state told us. And other states say voters can contact local elections offices to check the status of their mail-in ballot.
Voting officials say those are far better methods to check whether your mail-in ballot has been accepted than to show up at the polling place on Election Day.
“I would not say that many precincts have the ability to tell a voter whether their ballot has been received AND accepted for counting,” Lonna Atkeson, a political science professor at the University of New Mexico and an expert in election administration, told us via email. “Some places might be able to tell you that, some places might be able to tell you it was received. A lot of places, most I would say, wouldn’t have that information at all.”
In addition to those states that have online tracking systems, Atkeson said, “there’s often also a county/jurisdiction hotline that people can call to find if their ballot has arrived. So voters can absolutely determine this, but I wouldn’t say that the polling place would necessarily be the best place to find out that information.”
Weil, at the Bipartisan Policy Center, recommends that people not send mail-in ballots in the week before the election. If you have waited that long, he said, you ought to put the mail-in ballot in a designated election drop box, or vote in person.
Creating Chaos
Perhaps one of the most troubling concerns, voting experts say, is that Trump’s advice could wreak Election Day havoc.
If people take Trump’s advice in large numbers on Election Day, it is likely to “gum up the works” at polling places and result in long lines at the polls, Weil told us.
“Lines are already going to be long in some places on Election Day,” Hasen said in his piece for Slate. “The pandemic means it is harder to find poll workers and so there will be polling place consolidations and fewer workers, all contributing to a longer queue. Trump’s suggestion for his supporters to go to a polling place to try to vote twice—and via a complex procedure of trying to get a poll worker to confirm that an absentee ballot has been tabulated, which in some cases it will not have been—will add to those long lines. … Those long lines will do real damage to an Election Day infrastructure that is already looking stretched to the limits.”
Lori Robertson, D’Angelo Gore and Rem Rieder contributed to this story.
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