One could argue that Judge Jeff Weill threw the baby out with the bath water when he decided to throw out all the absentee ballots in former Leflore County Supervisor Wayne Self’s unsuccessful effort to have his defeat in November overturned.
Weill concluded that since about a third of the 167 absentee ballots in that contest were tainted — mostly by failing to follow the regulations that govern the issuance and casting of absent ballots — the easiest and cheapest thing to do was to just go with the machine count, which still had Self losing.
Problem with that reasoning, though, is that there were about 100 legally cast absentee votes — enough to change the outcome in the close election — that were not counted.
Although Weill’s ruling is not unprecedented, it is not the norm in election disputes such as this, according to John Pittman Hey, a longtime consultant on election challenges. The general rule, Hey says, has been that when the number of illegal votes cast exceeds the margin of difference in the election, and those illegal votes can’t be separated out because they’ve been mixed in with lawful votes, making it impossible to tell who received the greater number of lawful votes, then a new election is required.
Self might have been a bad sport in refusing to shake the hand of the declared winner, Eric Mitchell, after Weill rendered this decision, but the former county official also might have reasonable cause for appeal, if he decides to pursue it.
Even if Weill’s approach to settling the dispute was questionable, he was right on target in his criticism of the absentee balloting system in Mississippi.
Whenever there’s a very close election, such as the 16 votes that separated Self and Mitchell after the Nov. 5 contest was tabulated, almost always there are going to be enough problems with absentee ballots to prompt a court challenge, if the losing candidate is willing to foot the expense to do so.
That’s because those who vote absentee and the election officials who process the applications and the ballots have a hard time following every little detail that’s required. All of these rules have good intent — to cut down on the chance of voter fraud, for which absentee ballots are particularly susceptible — but they also create a nit-picky maze of details for everyone involved to navigate. The application for the ballot, the ballot itself and the envelope it is returned in have to be filled out, signed and witnessed just so, or the ballot can be thrown out.
“The written rules given to voters are many and unclear,” Weill said in delivering his decision last week. “The forms provided by the Legislature are confusing and appear contradictory. A quick look at the ballot application and the envelope confirm how difficult it is for a common voter — not to mention a disabled or elderly voter — to understand and comply.”
He added, “These byzantine requirements challenge clerks and other elected officials, all of who, as here, want to do the right thing but are confused by what that is.”
What can the Legislature do to fix the problem?
It could, in consultation with the Secretary of State’s Office and the circuit clerks around the state, see if there’s a way to reduce some of the absentee balloting requirements without jeopardizing the integrity of the elections.
A better solution, though, would be to reduce the need for absentee ballots by adopting early in-person voting in Mississippi, as four-fifths of the states have done. In these states, any qualified voter may cast a ballot in person during a designated period prior to Election Day. The voter doesn’t have to state a reason. Just shows up at the courthouse or some other designated area, votes on the machine or fills out the paper ballot as the voter would on Election Day. That’s it.
If Mississippi adopted early in-person voting, about the only people who would really need absentee ballots are the military, students away at college and the homebound. The absentee ballot laws could possibly even be changed to further restrict the categories of eligibility if there was a reasonably accessible alternative for those who are going to be traveling out of town on Election Day.
There is surprisingly no statistical evidence that early voting increases turnout. But there are other potential advantages to making voting more convenient while also keeping it secure.
Early in-person voting could reduce the lines at the polls on Election Day, which voters would like and poll workers, too. It could cut down on voter fraud by reducing the quantity of absentee ballots. And it could reduce the innocent errors that produce the grounds for many election lawsuits.
Maybe there’s a good reason not to do this. I just can’t think of one.