Class News

Gene Van Loan ’64 serves on NH Select Committee on Elections

June 20, 2020

Gene Van Loan served on the New Hampshire Select Committee on Elections, and reports as follows:

In April — which now seems like eons ago — I was appointed by the NH Secretary of State, after consultation with the Governor and the Attorney General, to a six-member Select Committee to make recommendations on how/where to spend the $3.2 million allocated to New Hampshire by the CARES Act to deal with the anticipated impact of the COVID-19 virus (the "pandemic") upon our Fall state/federal elections.

The final report of the Select Committee can be seen here.

It has been a real slog-fest over the last two months. I won't say that it was 24-7, but it sometimes felt like that. Our first Zoom conference, which was open to all of NH's election officials and the public, had 350 attendees.

The biggest problem we had was dealing with a moving target. Here we are in the Spring, trying to decide what the landscape will look like in September and November when we hold our primary and general elections, respectively. Will the virus subside (or even disappear), will we have a second wave, etc., etc.? So, all we could do was assume that the Fall situation will look the same as things look now.

Anyhow, as you can see from the Report, we did not elect to go to an all-mail-in election, nor did we elect to mail out absentee ballots to every registered voter. Refer to the "Mission and Context" section of our Report which lays out our basic assumptions. On the other hand, we did our best to facilitate absentee voting — not because it is a good thing in and of itself, but because, in the context of the Pandemic, it is important to minimize the number of people who show up at the polls. As I have watched things recently unfold in Presidential Primary elections in other states which have tried to deal with the same situation, especially the debacle in Georgia, I would like to think that we got it right.

Anyhow, although our report is New Hampshire-specific, if any of our classmates are involved in state electoral politics and procedures, they might find it useful.

Finally, with respect to my comment above about whether absentee or mail-in voting is a good thing in and of itself, here is my thinking on the matter:

In-person elections are communal participatory events which celebrate and express our commitment to democracy. Therefore, they should be cherished and promoted. (Personally, I believe that November's biennial general election should be a national holiday.)

Ideally, everyone should vote at the same time, for the same candidates, based upon the same information. When people vote by mail, these things are not true.

Voting in person guarantees the secrecy of the ballot. Absentee balloting is often not private. Because of this, absentee voters are often subject to improper influence, pressure, and even bribery.

Absentee balloting is also subject to fraud. There is no way to guarantee that an absentee ballot has been marked/cast by the person whose name is on the envelope (especially when signatures don't have to be witnessed or compared — as is now the case in NH).

When ballots are cast other than in person on election day, election officials are not in control of or responsible for the process. Outside parties — such as, for example, people assisting disabled voters, people who deliver ballots to or from the voter, and even the Post Office — are now in charge and their errors or failures can materially affect whether a voter's ballot gets counted.

Contrary to what is intended, the electoral process is not simplified by absentee voting; it is actually complicated as the alternatives are multiplied and more exceptions to the exceptions are created. Besides creating voter confusion and a lack of public confidence in the integrity of the process, it is fertile ground for litigation. Simply put, the more we focus on other-than-in-person voting and the special precautions that are required to make absentee balloting work, the more the tail wags the dog.

Because of the risks created by third-party failures (#5, above), and consistent with the notion that exceptions to exceptions are created to accommodate absentee voting (#6, above), there is an incentive for political actors, some election officials, and even judges to jump through hoops to make sure that "every vote gets counted." The most problematical result of this is to allow mailed absentee ballots which are postmarked by a certain day, but not received until some defined date AFTER election day, to be accepted and counted. This means that the results of an election are not final until sometime after election day and, in turn, means that if different states set the deadlines in question differently, the results of a national election (i.e., for President) may not be final until the votes of the state setting its counting deadline farthest out has passed. One of the reasons we have a national "election day" is so that everyone in every state votes on the same day. However, the value of doing this is diminished if different states count their ballots on different days — and there is no national rule that requires when/how ballots in federal elections are counted. Now let us assume that the polls are closed everywhere and A has received 267 Electoral College votes and B has received 268 Electoral College votes, but the votes in the District of Columbia (which has 3 Electoral College votes) are not counted until 5 days later due to a practice of allowing absentees to be received after Election Day. In this situation, everybody knows that if DC's votes go to A, A has the 270 Electoral College votes he/she needs to win the Presidency. If A ends up winning due to the results in the late-counting DC precinct, even if there are no shenanigans, the die of suspicion will have been cast. (By the way, this is essentially what happened in the 2000 Bush v. Gore election where all states but Florida had finished their counting and everyone knew exactly how many votes were needed to carry the Electoral College vote in Florida, which, in turn, would dictate the national result.)

Accordingly, while absentee balloting should be preserved, it should be the exception, not the rule.