Whilst the world is trying to cope with the Covid-19 pandemic, the normal functionality of most states is taking a back seat. That includes elections and democratic processes. The challenge for all leaders is to ensure that emergency measures put in place for times of crisis are rescinded as soon as they can be and normal democracy and personal freedoms are once again allowed to flourish.
So far, at least 20 countries have had elections postponed and more decisions are needed all the time. A few have tentatively named new dates in the autumn, but most are as yet un-scheduled. Some ballots have struggled on, but it has become clear that this will not be possible for much longer. Elections which had hoped to get under the wire, such as France’s local elections, have been pushed back. In the first round, the government asked voters to stay three feet apart and bring their own pens. Despite these and other measures, turnout dropped from 63% in 2014 local polls to 45%, prompting President Macron to postpone the second round.
And yet there remain a few polls which may still take place. According to International IDEA, “elections in South Korea (15 April 2020), Russia* (public vote scheduled for 22 April 2020) Bolivia (3 May 2020), New Zealand (19 September) and Romania (late 2020) are being held as originally scheduled despite concerns related to COVID-19.”
(*Note that the Russian vote has now been delayed).
The decision for lawmakers is how they can balance democracy with the health of their populations. Can mitigation measures be put in place to allow an election to go ahead, or will it put the health of voters and poll workers at risk? And is there a risk that one section of the population – typically older people – will be less inclined to vote, thus affecting the legitimacy of the outcome?
Reading the expert scientific opinion, we know that the virus can be spread by sneezing and coughing and by social contact. It is yet to be shown how long the virus can live in the open air, but places where large numbers of people can be expected to gather are at risk and such comings together have been banned in many states. Facemasks and disinfecting might help, but probably not enough to ensure that busy polling places are not without at least a degree of risk. And it would not be practical to ask every person to wear a mask or to wipe down all surfaces between each voter.
Even if it were possible, the level of concern among voters would be significant and would surely affect turnout – a factor that is not in the interests of any candidate, nor of democracy.
In those cases where elections have happened regardless – often in a country’s early stages of dealing with Covid-19 – various mitigation measures have been tried. For instance, in Israel, special polling places were set up for roughly 5,500 people self-isolating and these featured plastic sheeting and poll workers in protective gear.
Postponing elections is an easier option, but it has a significant impact on the democratic legitimacy of those who stay in office longer. And in many countries it is simply not legal to extend terms. Over the past few years, the annual survey of the state of democracy in the world has shown a small degree of backsliding. One of the tenets of a democratic society is that elections are held regularly and freely. Postponing them obviously risks this and so must only be taken as a last resort. In cases such as North Macedonia’s parliamentary elections slated for April 12th, the delay is less important as these were early polls in any case. Postponing them until the originally scheduled date in the autumn might not have a significant impact on the democratic health of the country.
One might also argue that the democratic deficit created by postponing local and mayoral elections for a year is not huge as these are less powerful positions. But it may still be the case that a postponement is unconstitutional. In an emergency session of parliament on 15th March 2020, Austria passed the ‘COVID-19-Law’. The law does not mention elections, but allows for far reaching restrictions to public life, including bans of assembly for more than five persons. Local elections scheduled for 15th March in Vorarlberg and for 22nd March in Styria have both been cancelled. Indefinitely postponing elections is not in Austria’s Constitution and its election laws prescribe: “In the event of circumstances that prevent the beginning, continuation or completion of the election, the election administration can extend the election or postpone it to the next day.” If a new date is not pencilled in soon then it may be that such instances will result in court fights.
Another case of concern is the vote on a new constitution for Chile due to be held on April 26th which has now been postponed to the autumn. This vote was the outcome of many years of protests about the Pinochet-era constitution. Instead of voting to replace widespread restrictions to personal freedoms, Chilean President Sebastián Piñera announced a 90-day “state of catastrophe” to confront the growing outbreak. The move gives the government extraordinary powers to restrict freedom of movement and assure food supply and basic services. The military is permitted to intervene and uphold order when necessary. A significant test of every country’s leadership will be how restrictive the measures are that they feel they need to put in place and how soon they can start to ease them.
And what of the November election for the US President – the most powerful elected office in the world? There couldn’t really be a serious debate about extending this term of office because it would fall immediately into an argument about President Trump himself. But if there could be an objective discussion, where would that end up if the virus was still having a major effect on American life? And how do we even get to the November elections which are reliant on a series of primaries to determine presidential and down-ballot candidates?
Various suggestions have been made about alternatives to the normal voting rules and procedures, but the oft-touted concept of all-mail voting does not come without significant risks. In particular, fraud, or the potential for it, is much higher based on the experience of the UK.
The idea of implementing an all-mail ballot is an attractive one, but comes up against significant barriers in the US context. Chief among these is that elections are a devolved responsibility with states and counties having their own laws and procedures. Just 34 states have a vote by mail option and the federal government cannot mandate its adoption. That is not to say that states might not choose to provide such a choice where they currently do not, or to expand it where it is currently limited, but such action comes at a price – both financial and logistical. One state that will be trialling an all-mail vote is Maryland where a special election is to be held on 28th April.
As an international election observer for more than 20 years, I know also that taking ballot papers out of the confines of the polling station carries a significant increased risk of fraud. And in a large election with many contests, there will be a significant rise in spoiled ballots and voter confusion in cases where there is not an official on hand to explain the process to those who may be unsure.
Such problems are exacerbated where the vote by mail is not obtained through choice but is universal. In the UK we trialled this over several elections between 2000 and 2002. The aim was to raise turnout in years which traditionally had low participation rates. The problem was that ballot envelopes are easily identifiable and can be taken by someone other than the intended voter. This happened chiefly where the voter had moved on or was not interested in voting and is an even bigger concern in multi-occupancy dwellings where residents have access to the mail of others. Where a voter has applied for a postal vote, they are more likely to raise the alarm when it does not arrive on time. But where they might not be expecting their vote to arrive in the mail, they may not know it is missing – particularly if they are someone who is less inclined to vote in the first place.
The other issue we faced in the UK was of unscrupulous campaigners stealing votes, pressuring voters and even creating ‘fraud factories’ to open up completed ballots and change them if they were not cast to the liking of the criminal parties.
With accusations of electoral fraud common in the US in recent years, even the possibility that this might be happening would be enough for candidates from across the political spectrum to throw accusations. This would damage trust in democracy and the credibility of those declared the winners.
Whilst in the UK we continue to allow postal voting on demand, we have tightened the system significantly. The all-mail election experiment was abandoned and the signature and date of birth of all postal voters are held by election officials with every returned ballot having a signed declaration which is checked before the ballot envelope is included in the count. It is a long and costly business with an impact on personal privacy and also leads to some valid votes potentially being excluded. But it is considered the fairest balance. Campaigners in the US have already made this a point of contention with some arguing for ballots without a perfect signature match to be counted.
That is not to say that all-mail ballots cannot work. The Swiss use such a system and there are few, if any, accusations of fraud in that country. But it should not be thought of as a risk-free option for the USA or elsewhere, even in these extraordinary times.
Technological solutions such as voting using text messaging, via the internet or by telephone were also trialled in the UK and found to have significant security risks. In a country where foreign agents are accused of having sought to disrupt the last election, it would be foolish to consider introducing more opportunities for hacking. The only country that routinely uses internet voting for public elections is Estonia and they have invested billions over many years into hardware and software to improve the security of the vote. The chances of any other country doing so for an election due in the next couple of years is negligible.
Inevitably, there is no easy solution to this challenge. Postponement, all-mail and technological solutions each have their benefits but also significant drawbacks. The debate to identify the least problematic option or options should continue. But it will only be successful if accepted by all parties and candidates as the best alternative.
UPDATE: International IDEA has now produced a technical paper looking at the options for holding elections.