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Vote-by-mail is NOT Safe From Executive Power

by Brian T. Lynch, MSW

I have a different view on mail-in ballots than most. Yes, it has been safe and very beneficial in the past. The question is how safe is an election against a determined attack by a ruthless potentate? That is the question we must answer. The potential vulnerabilities of vote-by-mail against threats by the Executive Branch to undermine or discredit an election are very significant. Elections are state functions.

Each state has full constitutional authority and autonomy to conduct its own elections. There are no national elections in the United States. That is perhaps the most fundamental separation of power in the Constitution that most of us don’t think of when we think of checks and balances.

To the extent that a state relies on the US Postal Service to handle state election ballots, it surrenders some of that autonomy to the federal government. It is a massive vulnerability because the U.S. Postal Service is under the direct control of the Chief Executive, Donald Trump.

We have already seen moves by the President to exploit this vulnerability when he installed an acting Master General, Louis DeJoy, on June 15, 2020. DeJoy was a top fundraiser for Donald Trump and the Republican National Party and a stalwart ally of the President. DeJoy is the first Postmaster General in 20 years with no prior experience at the U.S. Postal Service. He was president of LDJ Global Strategies, a Greensboro, North Carolina-based, boutique firm with interests in real estate, private equity, consulting, and project management.

When DeJoy began his tenure as 75 Postmaster General, he immediately began implementing sweeping changes to USPS operations in the face of backlash from unions, employees, and lawmakers. USPS announced a reorganization and corresponding executive shakeups that have already degraded the reliability of the USPS. Congress has expressed concern that new Postmaster DeJoy was consolidating power within the organization. The net effect has been slower mail delivery and a growing fear that the USPS will not be able to handle the great volume of mail that is expected due to huge numbers of mail-in-ballots.

When President Trump says that mail-in-voting will create a mess in this election, that isn’t a prediction… it is a direct threat by a man who is already acting to deliver on it.

And that isn’t the only vulnerability of mail-in voting. But focusing on the US Postal Service, there are a number of things that could help mitigate the threat of missing or late ballot deliveries. Proper handling of mail-in voting by mail might alleviate the vulnerability.

Maintaining the chain of custody

All mail-in ballots could be sent by certified mail with a return receipt request. Currently, the normal chain of custody in a state election is maintained in most states. Pickups by postal workers break that chain of custody. There is no proof that your ballot was picked up, and not stolen out of your mailbox, or from a mail drop. There is no way to track your envelope or ensure it has been delivered.

If your ballot is misplaced before it is date stamped at the Post Office, there is no way to prove you sent it before election day. If the USPS is going to play a vital part in a state election, vote-by-mail ballots should all be handled as certified mail, at no cost to the voter. Congress should allocate money to the US Postal Service to defray the cost to certify every mail-in ballot.

Additionally, every state board of election office collecting and processing the ballots should receive an electronic list of who has mailed every ballot being sent by certified mail. When the ballots are received at the Boards of the election, the return receipts and mail-in ballot should be timestamped as having been received in the office and the verified delivery cards returned to the voter. This would go a long way in securing vote-by-mail ballots.

Postscript from 8/13/2020. Trump says it out loud: